A    TREATISE 

ON   THE   LAW   OF 

TRUSTS  AND  TRUSTEES 

BY 

JAIRUS   WARE    PERRY 


FOURTH   EDITION 
EMBODYING    RELEVANT    CASES    DOWN    TO    DATE 

By    frank    parsons 


IN    TWO    VOLUMES 

Vol.  I. 


BOSTON 
LITTLE,  BROWN,  AND  COMPANY 

1889 


r 

U89 


vol 


Entered  according  to  Act  of  Congress,  in  the  year  1874, 

By  Jairus  Wake  Perht, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


Copyright,  1889, 
Bt  Leverett  S.  Tuckekman  and  Andrew  Fitz,  Trustees. 


Universitt  Press: 
John  Wilson  and  Son,  Cambridge. 


i5^ 


TO    THE   HONORABLE 

HORACE     GRAY,    JR., 

ONE  OF  THE  ASSOCIATE  JUSTICES  OF  THE  SUPREME  JUDICIAL  COURT  OP 
MASSACHUSETTS, 

THIS   WORK    IS    INSCRIBED    IN    ACKNOWLEDGMENT    OF    THE    ASSISTANCE    RECEIVED 

FROM  HIS  JUDICIAL  OPINIONS,    AND  FROM  HIS  PERSONAL  INTEREST 

IN  THE  PROGRESS  OF  ITS  CONSTRUCTION, 

BY  THE  AUTHOR. 


PEEFACE 

TO  THE  FOURTH  EDITION". 


In-  all  the  courts  of  last  resort  in  this  country,  the 
judges,  continually  and  as  a  perfectly  understood  and 
settled  thing,  refer  to  Perry  on  Trusts  as  the  standard 
authority  upon  all  questions  of  law  and  equity  pertain- 
ing to  its  subject-matter.  Many  times  eminent  judges 
in  writing  their  opinions  have  deemed  it  sufficient 
proof  of  a  principle  or  rule  they  wished  to  make  use 
of,  simply  to  state  it  with  a  reference  to  Perry ;  and 
indeed  few^ judges  could  hope  to  arrive  at  more  correct 
conclusions  or  more  convincing  proof  of  them  than  the 
clear,  strong  mind,  and  intense  industry  of  the  author 
enabled  him  to  attain.  The  heart's  blood  of  his  best 
manhood  he  poured  into  this  study ;  many  buried  years 
bloom  in  this  book,  —  it  is  the  flower  of  a  vigorous  life. 

It  is  analytic,  orderly,  and  symmetrical,  and  every- 
where marked  by  comprehensive  generalization,  accu- 
rate detail,  and  exhaustive  citation.  So  perfect  is  it  that 
the  new  cases  have  not  called  for  a  single  new  chapter, 
and  for  less  than  twenty-five  new  sections.  Three  thou- 
sand cases  decided  since  the  last  edition,  and  referring 
in  some  way  to  trusts  or  trustees,  have  been  examined 
by  the  present  editor.  Most  of  them  were  found  not 
to  involve  any  principle  of  the  law  of  trusts,  being 


VI  PREFACE. 

merely  related  in  name  to  our  subject,  because  a  trus- 
tee was  involved  in  a  dispute  as  to  whether  a  certain  con- 
tract was  within  the  statute  of  frauds,  or  parol  evidence 
was  admissible  for  a  given  purpose,  etc.,  —  matters 
which  pertain  to  other  departments  of  law  than  that 
with  which  we  are  dealing.  The  results  of  about  one 
thousand  new  cases  have  been  embodied  in  the  text 
of  this  edition.  These  decisions  are  distinguished  by 
a  dash  before  each  in  the  table  of  cases.  There  is  a 
marked  tendency  in  the  suits  of  each  decade  to  leave 
the  old  battle-grounds  and  cluster  about  a  few  compar- 
atively new  and  unsettled  points.  The  existence  of  an 
implied  or  resulting  trust,  the  right  of  a  cestui  to  fol- 
low trust  property  and  its  proceeds,  and  the  rights  of 
creditors,  have  been  such  muster-fields  during  the  last 
few  years,  and  many  new  phases  of  these  old  questions 
will  be  found  in  the  chapters  that  treat  of  them.  The 
old  section  numbers  have  not  been  disturbed,  but  the 
figures  at  the  top  of  each  page  refer  to  sections,  not  to 
pages  as  heretofore.  The  section  indices  at  the  heads 
of  the  chapters  have  been  much  improved  by  grouping 
the  references  under  sub-heads,  and  the  main  index 
has  been  bettered  in  the  same  way,  and  also  some- 
what enlarged.  Every  case  inserted  in  this  edition  has 
been  carefully  examined  by  the  editor  in  person,  arid  it 
has  been  his  effort  throughout  to  put  no  work  upon 
the  book  that  would  not  be  in  keeping  with  its  high 
character. 

FRANK  PARSONS. 
Boston,  October,  1889. 


ADVERTISEMENT  TO   THE   THIRD   EDITION. 


The  steady  demand  for  the  former  editions  of  this 
treatise  on  the  Law  of  Trusts,  and  the  frequent  refer- 
ences to  it  in  the  reported  cases,  attest  the  estimation 
in  which  the  work  is  held  by  the  profession,  and  its 
assured  place  among  the  standard  text-books  of  the 
law,  such  as  was  anticipated  for  it  by  those  who  knew 
the  author  best,  and  were  familiar  with  his  studious 
habit,  his  ability  and  learning.  It  is  very  much  to  be 
regretted  that  by  Mr.  Perry's  lamented  death,  at  an  age 
when  some  of  the  best  work  might  reasonably  have 
been  expected  from  him,  we  have  lost  the  ripe  fruits 
of  the  study  and  thought  which  he  was  constantly 
giving  to  the  subjects  of  which  his  book  treats,  so  long 
as  health  and  strength  allowed  him  to  study. 

In  the  preparation  of  the  present  edition,  notes  and 
references  have  been  made  to  the  decisions,  since  the 
publication  of  the  last  edition,  bearing  upon  the  topics 
discussed  in  the  book,  with  occasional  additions  of  old 
cases  which  have  come  under  observation,  leaving  the 
author's  text  and  notes  generally  as  they  were  written, 
without  incurring  the  risk  of  marring  what  was  well 


Vlll  ADVERTISEMENT  TO   THE  THIRD   EDITION. 

done  before.  The  arrangement  and  numbering  of  sec- 
tions remain  as  in  the  last  edition.  Much  time  and 
labor  have  been  expended  in  revising  the  citations; 
and  a  large  proportion  of  them  have  been  verified  or 
corrected,  and  inaccuracies  which,  in  the  haste  of  prep- 
aration of  the  former  edition,  had  crept  in,  have  been 
corrected.  I  am  indebted,  for  assistance  in  this  work 
of  verification,  to  my  young  friends,  Messrs.  William 
Perry  and  Alden  P.  White  of  the  Essex  bar,  upon  the 

former  of  whom  now  devolves  the  duty  of  upholding 

« 
in  the   profession   the   name    and   fame   of  a  worthy 

father.     The  index  of  subjects  has  also  been  revised 

and  enlarged  with  many  additional  references,  by  which, 

it  is  hoped,  the  body  of  learning  in  the  text  has  been 

made  more  easily  accessible,  and  the  general  usefulness 

of  the  book  increased. 

C. 

Salem,  February,  1882. 


ADVERTISEMENT 

TO     THE     SECOND    EDITION. 


The  rapid  absorption  of  the  first  edition  of  this  work 
into  the  hands  of  the  profession  has  not  left  to  the 
Author  so  much  time  as  could  have  been  desired  for 
the  preparation  of  a  second  edition ;  nor  could  the 
necessary  work  have  been  done  at  all,  unless  it  had 
been  constantly  in  his  hands.  Even  before  the  first 
edition  had  been  sent  forth,  work  was  done,  and  mate- 
rials accumulated,  to  improve  the  second,  if  it  should 
ever  be  called  for.  At  no  time  has  there  been  a  relax- 
ation of  thought  and  study  upon  the  subject.  The 
new  cases  have  been  assimilated  as  the  Reports  came 
along,  and  old  cases  have  been  added  as  they  fell 
under  notice  in  business  or  study.  The  Author  owes 
a  debt  of  gratitude  to  his  professional  brethren  in 
every  part  of  the  country,  for  many  valuable  criticisms, 
suggestions,  and  references  to  authorities.  Thirty- 
three  new  sections  upon  the  trusts  that  arise  under 
power  of  sale  mortgages,  and  deeds  of  trust  in  the 
nature  of  mortgages,  have  been  added  ;  and  many  new 
sections  upon  important  questions  are  scattered  through 
the  work.     The  numbers  of  the  sections  of  the  first 


X  ADVERTISEMENT  TO   THE  SECOND   EDITION. 

edition  are  preserved,  that  there  may  be  no  confusion 
in  the  citations  of  the  two  editions. 

The  Author  has  been  reluctant  to  swell  the  book  into 
two  volumes,  but  it  was  found  impossible  to  compress 
the  materials  into  a  single  volume  of  a  form  and  size 
reasonably  convenient  for  use.  In  sending  forth  this 
edition  the  Author  hopes  that  it  may  do  something  to 
lighten  the  toils  of  a  laborious  profession,  and  that  it 
may  meet  with  the  same  kind  indulgence  which  was 
so  liberally  bestowed  upon  the  first. 

Salem,  Mass.,  Sept.  15,  1874. 


PREFACE. 


An  American  book  upon  the  subject  of  Trusts  has 
long  been  needed  by  the  profession.  At  the  sohcita- 
tion  of  too  partial  friends,  the  writer  was  induced  to 
undertake  its  preparation.  The  result  is  now  given  to 
the  public. 

The  writer  of  a  law-book  would  be  inexcusable  if  he 
failed  to  use  all  the  materials  at  his  command,  which 
could  in  any  way  enable  him  to  state  and  illustrate  the 
law.  The  treatises  and  opinions  of  eminent  writers, 
as  well  as  the  reports  of  the  decisions  and  opinions  of 
judges,  must  all  be  studied  and  mastered.  And  where 
the  book  is  intended  for  the  daily  use  of  the  lawyer  in 
busy  practice,  it  must  contain  a  notice  and  citation  of 
the  latest  cases  and  authorities.  To  this  end  all  the 
treatises  and  essays,  as  well  as  the  reported  decisions, 
upon  the  subject,  have  been  used. 

In  addition  to  the  original  opinions  of  judges  con- 
tained in  the  Reports,  the  excellent  treatise  on  the 
Law  of  Trustees  by  Mr.  Hill,  and  the  notes  and  com- 
mentaries of  the  learned  American  editors,  have  been 
carefully  considered  upon  all  the  subjects  treated  by 
them. 

The  most  complete  work  upon  the  Law  of  Trusts  is 
the  fifth  edition  of  Mr.  Lewin's  Treatise.  This  work, 
first  printed  more  than  thirty  years  ago,  has  received 


Xii  PREFACE. 

in  its  various  editions  the  most  careful  emendations, 
corrections,  and  additions  by  its  author,  until  in  the 
last  edition  it  has  grown  into  a  remarkably  full  and 
clear  exposition  of  the  Law  of  Trusts,  as  administered 
in  England. 

It  has  been  the  constant  object  of  the  writer  to  cover 
all  the  ground  embraced  by  the  treatises  of  Mr.  Lewin 
and  Mr.  Hill,  so  far  as  the  same  is  important  to  the 
American  lawyer ;  and,  in  addition,  to  include  such 
other  subjects  and  matters,  relating  to  the  Law  of 
Trusts,  not  treated  fully  in  those  w^orks,  as  are  useful 
and  necessary  in  American  practice. 

Perhaps  the  accumulation  of  authorities  upon  the 
many  topics  discussed  may  call  for  some  explanation, 
A  large  and  increasing  number  of  States  and  courts  are 
yearly  sending  out  a  great  number  of  volumes  of 
Reports.  Few  lawyers  can  have  access  to  the  whole 
number,  but  all  desire  to  see  the  cases  in  their  own 
State  Reports  bearing  upon  each  proposition  of  the 
text.  It  has  therefore  been  the  aim  of  the  writer  to 
cite  the  cases  in  all  the  States,  although  the  citation  of 
a  few  leading  cases  is  always  sufficient  to  sustain  an 
elementary  proposition.  He  cannot  hope  that  he  has 
cited  ajl  the  cases  upon  the  many  matters  treated ;  but 
it  has  been  his  purpose  to  do  so,  and  this  has  caused 
an  accumulation  of  cases  which  to  some  may  seem 
unnecessary. 

Conscious  of  defects  in  the  execution  of  his  work,  he 
trusts  that  a  liberal  profession  will  rather  consider  how 
much  of  a  difficult  task  has  been  accomplished,  than 
how  much  has  been  omitted  or  imperfectly  done. 

The  writer  cannot  send  this  book  forth  to  the  pub- 
lic without  acknowledging  the  constant  kindness  and 
encouratrement  which  he  has  received  from  his  friends 


PEEFACE.  Xm 

during  the  labor  of  its  composition ;  and  it  is  his  espe- 
cial duty  and  pleasure  to  acknowledge  his  obligations 
to  his  friend  and  associate  in  business  for  nearly  twenty 
years,  William  Ceowninshield  Endicott,  Esquire, 
whose  sound  learning  and  clear  judgment  have  been  a 
never-failing  resource  in  matters  of  doubt  and  difficulty, 
and  whose  refined  and  severe  taste  has  been  freely 
employed  in  pruning  redundancies  and  softening  asper- 
ities of  manner  and  style. 

Salkm,  Mass.,  Nov.,  1871. 


CONTENTS    OF    VOLUME    I. 


Page 
Index  to  Cases  Cited xxvii 


CHAPTER   I. 

INTRODUCTION. 

Section 
Origin,  History,  Definition,  and  Division  or  Classifi- 
cation OP  Trusts 1-27 

§  1.   The  general  nature  of  trusts. 

§  2.   The  technical  nature  of  trusts,  and  their  origin  in  the  Jidei  commissa  of  the 
Roman  law. 

§  3.   The  origin  of  uses. 

§  4.   The  inconveniences  that  arose  from  the  prevalence  of  uses. 

§  5.   The  statute  of  uses. 
§§  6,  7.   The  effect  of  the  statute  of  uses,  and  the  origin  of  trusts. 
§§  8, 9, 10.    Development  of  trusts  in  England  and  America. 

§  11.   Advantage  of  the  late  adoption  of  trusts  in  America. 

§  12.   Object  of  this  treatise. 
§§  13-17.   Definition  of  trusts. 

Classification  of  trusts. 

§  18.  Simple  and  special  trusts. 

§  19.  Ministerial  and  discretionary  trusts. 

§  20.  A  mixed  trust  and  power,  and  a  power  annexed  to  a  trust. 

§  21.  Legal  and  illegal  trusts. 

§  22.  Public  and  private  trusts. 

§  23.   .  Duration  of  a  private  trust  and  of  a  public  trust. 

§§  24-27.  Express  trusts,  implied  trusts,  resulting  trusts,  and  constructive  trusts. 

CHAPTER   II. 

Parties   to   Trusts  ;    and   what   Property  may   be  the 

Subject  of  a  Trust       28-72 

I.  §§  28-37.   Who  may  create  a  trust. 

§  28.  All  persons  competent  to  contract  or  make  wills  may  create  trusts. 

§  29.  The  king  may  create  trusts. 

§  30.  The  State  may  create  trusts ;  and  so  may  all  its  officers. 

§  31.  Corporations  may  create  trusts. 

VOL.  I.  —  6 


XVI  CONTENTS   OF   VOLUME   I. 

§  32.  The  power  of  married  women  to  create  trusts. 

§  33.  Capacity  and  power  of  infants  to  create  trusts. 

§  34.  The  marriage  settlements  of  infants. 

§  35.  Of  the  ability  of  lunatics  to  create  trusts. 

§  36.  Of  convej'ances  in  trust  by  aliens. 

§  37.  Trusts  by  bankrupts  and  insolvents. 

II.  §§  38-59.  Who  maj-  be  a  trustee. 

§  38.  A  person  may  convert  himself  into  a  trustee. 

§  39.  Any  person  capable  of  taking  the  legal  title  may  take  as  trustee. 
Rules  that  govern  courts  in  appointing  trustees. 

§  40.  The  sovereign  may  be  trustee.     Question  as  to  remedy. 

§  41.  The  United  States  and  the  several  States  maj'  be  trustees. 

§§  42-45.  Corporations  may  be  trustees. 

§  46.  Unincorporated  societies  may  be  trustees  for  charitable  purposes. 

§  47.  Public  officers  as  trustees. 

§§  48-51.  Married  women  as  trustees. 

§§  52-54.  Infants  as  trustees. 

§  55.  Aliens  as  trustees. 

§  56.  Lunatics  as  trustees. 

§  57.  A  religious  person  or  nun  as  trustee. 

§  58.  A  bankrupt  as  trustee. 

§  59.  Cestui  que  trust  may  be  a  trustee  for  himself  and  others. 

III.  §§  60-66.  Who  may  be  cestui  que  trust. 

§  60.  All  persons  may  be  cestuis  que  trust  who  may  take  the  legal  title. 

§§  61, 62.  The  Crown  and  the  State  maj'  be  cestuis  que  trust. 

§  63.  Corporations  as  cestuis  que  trust. 

§  64.  Aliens  as  cestuis  que  trust, 

§  65.  Those  who  cannot  take  a  legal  interest  cannot  take  an  equitable 

interest. 

§  66.  Except  in  certain  charitable  trusts. 

IV.  §§  67-72.  What  property  may  be  the  subject  of  a  trust. 

§  67.  A  trust  may  be  created  in  every  kind  of  valuable  property. 

§  68.  Possibilities,  choses  in  action,  expectancies,  and  property  not  at  the 

time  in  esse  may  be  assigned  in  trust. 

§  69.  Choses  in  action  and  expectancies  that  cannot  be  assigned  in  trust. 

§§  70-72.  Trusts  in  land  lying  in  a  foreign  jurisdiction,  and  their  adminis- 
tration. 


CHAPTER   III. 

Express  Trusts,  and  how  Express  Trusts  are  created 
AT  Common  Law,  since  the  Statute  of  Frauds,  and 
IN  Personal  Property,  and  Herein  of  Voluntary 
Conveyances  or  Settlements  in  Trust 73-111  a 

§  73.   Division  of  trusts,  according  to  the  manner  of  their  creation. 
§§  74-77.   Trusts  at  common  law. 
§  74.  At  common  law,  a  writing  not  necessary  to  convey  land. 

§  75.  Uses  might  also  be  created  without  writing,  and  so  may  trusts,  in 

States  where  the  statute  of  frauds  is  not  in  force. 


CONTENTS   OF   VOLUME   I.  Xvil 

§  76.  Parol  cannot  control  a  written  trust  nor  engraft  an  express  trust  on  an 

absolute  conveyance. 
§  77.  Same  rule  as  to  trusts  created  by  parol. 

§  78.   The  statute  of  frauds,  and  its  form  in  various  States. 
§  79.  Effect  of  the  statute  upon  the  creation  of  express  trusts. 

§§  80,  81.         Effect  of  the  different  forms  of  the  words  of  the  statutes  in  the  several 

States. 
§  82.  How  express  trusts  may  be  proved  or  manifested  under  the  statute. 

§  83.  Certainty  of  the  terms  of  the  trust,  and  the  person  by  whom  it  is  to  be 

declared. 
§§  84,  85.  Trusts  declared  or  proved  by  answers  in  chancery. 

§  86.  Trust  in  personal  property  mav  be  created  by  parol. 

§§  87,  88.  Trusts  arising  from  gifts  mortis  causa  and  for  charitable  uses. 

§  89.    Statute  of  wills,  and  the  execution  of  wills. 

§  90.  Trust  cannot  be  created  in  a  will,  unless  it  is  properly  executed,  to  pass 

the  propert}'. 
§§  91,  92.  But  might  be  manifested  by  a  recital  in   a  will   not  properly  exe- 

cuted. 
§  93.  The  effect  of  the  necessity  of  probate  of  wills. 

§  94.  Parol  evidence  cannot  convert  a  bequest  in  a  will  into  a  trust.    An 

executor  is  a  trustee  of  the  surplus. 
§  95.    When  a  trust  is  completely  created. 

An  agreement  upon  a  valuable  and  legal  consideration  will  be  carried 
into  effect  as  a  trust  or  a  contract. 
§§  96-98.  If  a  complete  trust  is  created  without  consideration,  it  will  be  carried 

into  effect. 
§  97.  But  if  anything  remains  to  be  done  to  complete  the  trust,  it  will  not  be 

carried  into  effect,  if  without  consideration. 
§  99.  Whetlier  a  lawful  trust  is  completely  created  or  not  a  question  of  fact 

in  each  case. 
§  100  Trust  for  a  stranger  without  consideration  not  completed  without  trans- 

fer of  the  legal  title. 
§  101.  But  if  the  legal  title  cannot  be  transferred,  a  different  rule  will  apply. 

§  102.  If  the  subject  of  the  proposed  trust  is  an  equitable  interest,  the  legal 

title  need  not  be  transferred. 
§  103.  The  instrument  of  trust  need  not  be  delivered. 

§  105.  Notice  not  necessary  to  trustee  or  cestui  que  trust. 

§  104.    If  once  perfected  cannot  be  destroyed,  though  voluntary. 
§§  106,  107.  Voluntary  settlements  upon  wife  and  children. 
§  108.  When  they  will  not  be  enforced. 

§  109.  Tendency  of  the  rule  in  the  United  States. 

§  110.  Marriage  a  valuable  as  well  as  meritorious  consideration. 

§  111.   Effect  of  a  seal. 
§  111  a.  New  York  Statute  Law. 


CHAPTER    IV. 
Implied  Trusts ;  112-123 

§  112.    The  manner  in  which  trusts  are  implied,  and  the  words  from  which  they  are 

implied. 
§  113.   Words  from  which  a  trust  will  not  be  implied. 


XVlll  CONTENTS   OF   VOLUME   I. 

§§  114-116.   Rules  by  -which  trusts  will  or  will  not  be  implied. 

§§  117, 118.   Implied  trusts  from  directions  as  to  the  maintenance  of  children  or  others. 

§  119.   When  trusts  for  maintenance  are  not  implied. 

§  120.    Rules  that  govern  implied  trusts. 

§  121.   Trusts  arising  by  implication  from  the  provisions  of  a  will. 

§  122.    Implied  trusts  arising  from  contracts. 

§  123.  A  direction  to  employ  certain  persons  does  not  raise  an  implied  trust. 

CHAPTER   V. 
Resulting  Trusts 124-165  a 

§  124.   Creation  and  character  of  a  resulting  trust. 

§  125.    Divisions  of  this  kind  of  trust. 

§  126.  Resulting  trust  where  the  purchase-money  is  paid  by  one,  and  deed  is 

taken  to  another.     See  §  142. 

§  127.  Resulting  trust  where  trust  funds  are  used  to  purchase  property,  and 

title  taken  in  the  name  of  another. 

§  128.   In  what  cases  a  trust  results,  and  when  a  trust  does  not  result.     See  §§  143, 
156,  160. 

§  129.  When  a  person  uses  his  fiduciary  relation  to  obtain  an  interest  in,  or 

affecting  the  trust  property. 

§  130.  Same  rules  apply  to  personal  property  unless  it  is  of  a  perishable  nature. 

§  131.  Where  a  resulting  trust  will  not  be  permitted  as  against  law. 

§  136.  No  resulting  trust  in  a  joint  purchase. 

§  1.32.    Rules  as  to  a  resulting  trust. 
§§  133,  134.  Time  and  circumstances  in  the  creation  of  a  resulting  trust. 

§  135.    Parol  evidence  as  to  a  purchase  by  an  agent  not  admissible. 
§§  137,  138.    Resulting  trusts  may  be  established  by  parol. 

§  139.  May  be  disproved  bj'  parol  —  the  burden  of  proof. 

§  140.  Cannot  be  changed  by  parol  after  they  arise. 

§  141.   Will  not  be  enforced  after  a  great  lapse  of  time. 

§  142.   Resulting  trusts  under  the  statutes  of  New  York  and  other  States. 

§  143.   A  resulting  trust  does  not  arise  if  the  title  is  taken  in  the  name  of  wife  or 
child. 

§  144.  What  persons  it  embraces. 

§  145.  Doubts  and  overruled  cases. 

§  146.  When  it  will  be  presumed  to  be  an  advancement. 

§  147.  The  presumption  may  be  rebutted. 

§  148.  Is  rebutted  by  fraud  in  the  wife  or  child. 

§  149.  Creditors  may  avoid  such  advancements.     When  and  how. 

§  150.   A  resulting  trust  from  the  conveyance  of  the  legal  title  without  the  beneficial 
interest. 

§  151.  Every  case  must  depend  upon  its  particular  writing  and  circumstances. 

§  152.  Instances  and  illustrations. 

§§  153, 154.     If  there  is  an  intention  to  benefit  the  donee,  there  is  no  resulting  trust. 

§  155.   Gifts  to  executors  may  create  resulting  trusts. 

§  156.   Resulting  trusts  do  not  arise  upon  gifts  to  charitable  uses. 

§  157.   A  gift  upon  trust  or  to  a  tmstee  and  no  trust  declared. 

§  158.   Always  a  matter  of  intention  to  be  gathered  from  the  whole  instrument. 

§  159.   Where  a  special  trust  fails  it  will  result. 

§  160.  Where  a  special  trust  fails  from  illegality  or  lapses,  it  results. 

§  160  a.         To  whom  it  results. 


CONTENTS   OF   VOLUME   I.  xix 

§§  161, 162.  Whether  a  trust  results  from   a  voluntary   conveyance    without   con- 
sideration. 
§  163.  Equity  does  not  favor  such  conveyances ;  they  may  be  void  for  fraud, 

but  no  trust  results. 
§  164.  Voluntary  conveyances  to  wife  or  child. 

§  165.   No  trust  results  from  a  fraudulent  transaction. 
§  165  a.   How  a  resulting  trust  is  executed. 


CHAPTER    VI. 

Constructive  Trusts 166-230 

§  166.    General  nature  of  constructive  trusts.     They  arise  from  fraud. 

§  167.  Jurisdiction  of  equity  over  them,  and  the  relief  given  by  converting  the 

offending  party  into  a  trustee. 
§  168.   Classification  of  constructive  trusts. 
§  169.    General  definition  of  a  fraud  in  equitj'. 
§  170.   Principles  upon  which  equity  gives  relief  against  fraud. 
§  171.   Actual  fraud,  or  suggestio  falsi. 
§  172.  Illustrations  of  actual  fraud. 

§  173.  The  misrepresentations  and  frauds  that  equity  will  relieve  against. 

§  174.  The  misrepresentation  must  be  of  facts  material  to  the  contract. 

§  175.  The  misrepresentation  must  be  of  something  peculiarly  within  the 

party's  knowledge. 
§  176.  The  relief  will  depend  upon  the  form  in  which  it  is  sought. 

§  177.   Fraud  that  arises  from  concealment,  or  suppressio  veri. 
§  178.  This  kind  of  fraud  depends  much  upon  the  relation  of  the  parties. 

§  179.  When  a  person  may  not  be  silent. 

§  180.  Suppressio  ven  is  generally  in  law  an  aflSrmative  act. 

§  181.    Courts  will  relieve  where  acts  are  fraudulently  prevented  from  being  done  — 

illustrations. 
§  182.  Trust  established  where  a  party  fraudulently  prevents  a  will  from  being 

made  in  another's  favor. 
§  183.    Trust  established  in  odium  spoliatoris. 

§  184.   Trust  established  upon  a  conveyance  made  in  ignorance  or  mistake. 
§  185.   But  if  the  conveyance  is  a  compromise,  courts  will  support  it  if  possible. 
§  186.  Trust  established  when  a  deed  by  mistake  contains  more  land  than  was 

intended. 
§  187.    Misrepresentation  of  the  value  of  property  and  inadequacy  of  consideration. 
§  188.  Catching  bargains  with  young  heirs  and  reversioners. 
§  189.   Trust  arising  from  mental  incapacity  or  imbecility  of  parties. 
§190.  Mental  weakness  —  old  age. 

§  191.  Drunkenness. 

§  192.  Duress  —  oppression  and  distress. 

§  193.  Where  several  of  these  circumstances  are  found  combined. 

§  194.   Frauds  that  arise  by  construction  from  the  fiduciary  relations  of  parties. 
§  195.  Between  trustee  and  cestui  que  trust. 

§  196.  Renewal  of  leases  in  his  own  name  by  trustee. 

§§  197, 198.  Contracts  prohibited  between  trustee  and  cestui  que  trust,  but  the 

cestui  que  trust  alone  can  avoid  them. 
§  199.  Rule  does  not  apply  to  dry  trustees. 

§  200.  Guardians  and  wards. 

§  201.  Parents  and  children. 


XX  CONTENTS    OF    VOLUME   I. 

§§  202,  203.    Attorney  and  client. 
§  20-1.  Rule  applies  to  all  confidential  advisers. 

§  205.  Administrators  and  executors. 

§  206.  Principal  and  agent. 

§  207.  Directors  of  corporations. 

§  208.  Trusts  that  arise  out  of  inducements  held  out  for  marriage. 

§  209.  Other  fiduciary  relations. 

§  210.  Undefined  fiduciary  and  friendly  relations. 

§  211.   Trusts  arising  from  the  frauds  of  third  persons. 
§  212.  Frauds  upon  third  persons  as  creditors,  etc. 

§  213.  Conveyances  bj'  man  or  woman  on  the  point  of  marriage. 

§  214.  Illegal  and  immoral  contracts. 

§  215.  Fraud  by  pretending  to  buy  for  another. 

§  216.  Devises  or  convej-ances  upon  secret  illegal  trusts. 

§  217.  Purchases  from  trustees  with  knowledge  of  the  trusts. 

§  218.  Purchases  without  notice  of  the  trust. 

§  219o  The  safeguards  thrown  around  such  purchases. 

§  220.  The  consideration  in  such  cases. 

§  221.  The  consideration  must  have  been  actually  paid. 

§  222.  Notice  of  the  trust  —  to  whom  it  maj-  be. 

§  223.  Notice  may  be  actual  or  constructive. 

§  224.  Purchase  of  property  from  executors  or  administrators  —  real  estate. 

§  225.  Personal  property. 

§  226.   Constructive  trusts  may  be  proved  by  parol  —  statute  of  frauds  does  not  apply. 
§  227.   The  right  to  set  aside  a  conveyance  for  fraud  is  an  equitable  estate  that  may 

be  conveyed  and  devised. 
§§  228-230.   Statute  of  frauds  and  the  time  within  which  steps  must  be  taken  to  avoid 

a  fraudulent  conveyance. 


CHAPTER   VII. 

Trusts  that  arise  bt  Equitable  CoNSTRrcTioK  m 

THE  Absence  of  Fraud 231-247  a 

§  231.    Trust  by  equitable  construction.     Illustration. 

§  232.   Vendor's  lien  for  the  purchase-money  of  this  description.     States  in  which 
it  exists. 

§  233.  This  lien  does  not  contravene  the  statute  of  frauds. 

§  234.  The  nature  of  the  interest  of  the  vendor  under  this  lien. 

§§  235-237.     When  the  lien  exists  and  when  not. 
$^  238, 239.     The  parties  between  whom  the  lien  exists. 

§  240.   Trust  by  construction  where  a  conveyance  is  made  that  cannot  operate  at  law. 

§  241.   Constructive  trust  where  trust  property  is  transferred  by  gift  from  the  trustee. 

§  242.    Constructive  trust  where  a  corporation  distributes  its  capital  stock  without 
paying  its  debts. 

§  243.    A  person  holding  the  legal  title  as  security  is  a  constructive  trustee. 

§  244.   Executor  indebted  to  the  testator's  estate  is  a  constructive  trustee. 

§  245.    A  person  may  become  a  trustee  de  son  tort  by  construction. 

§  246.   An  agent  may  become  a  constructive  trustee. 

§  247.   A  person  holding  deeds  or  papers  or  property  belonging  to  another  may  be 
a  constructive  trustee. 

§  246  a.  Other  equita'  le  trusts.     See  247  a. 


CONTENTS   OF   VOLUME   I.  XXi 

CHAPTER    VIII. 

Trusts  that  arise  by  Construction  from  Powers      .    248-258 

§  248.    The  nature  of  powers  that  imply  a  trust. 

§  249.   Court  will  execute  such  powers  as  trusts. 
§§  250,  251.  Instances  of  powers  which  the  court  will  execute  as  trusts. 

§  252.   Instances  of  powers  that  are  not  trusts. 

§  253.  Where  the  power  is  too  uncertain. 

§  254.   The  power  must  be  executed  as  given,  or  it  will  remain  a  trust  to  be  exe- 
cuted by  the  court. 
§§  255,  256.  In  what  manner  the  court  will  execute  a  trust  arising  out  of  a  power. 

§  257.  Whether  courts  will  distribute  ^er  stirpes  or  per  capita, 

§  258.  And  whether  to  those  living  at  the  death  of  donor  or  of  the  donee. 

CHAPTER    IX. 

Appointment,  Acceptance,  Disclaimer,  Removal, 
Resignation,  Substitution,  and  Number  of  Trus- 
tees, and  Appointment  under  a  Power  ....       259-297 

§  259.  Acceptance  of  the  trust —  how  and  when  it  should  be  accepted. 

§  260.  What  is  an  acceptance,  and  its  effect. 

§  261.  How  an  acceptance  ma\'  be  shown. 

§  261  a.    Trustee's  bond. 
§§  262,  263.  Where  an  executor  is  also  named  as  trustee. 

§  264.   Of  the  executor  of  an  executor,  or  the  executor  of  a  trustee. 

§  265.   Trustee  de  son  tort. 

§  266.   No  such  thing  as  a  passive  trustee. 

§  267.   Disclaimer  by  trustee. 

§  268.  Cannot  disclaim  after  acceptance. 

§  269.  Whether  an  heir  can  disclaim  after  the  death  of  the  trustee. 

§§  270,  271.     Parol  disclaimer  sufficient,  but  a  writing  more  certain. 

§  272.  Where  a  legacy  or  other  benefit  is  given  to  the  trustee  or  executor. 

§273.  Effect  of  a  disclaimer. 

Removal  or  resignation. 

§  274.  How  a  trustee  may  be  removed  or  resign. 

§  275.  For  what  causes  may  be  removed. 

§  276.  For  what  causes  ma}'  be  allowed  to  resign. 

§  276  a.         A  trust  shall  not  fail  for  lack  of  a  trustee.     See  §  731. 
§§  277,  278.     How  the  court  proceeds  in  substituting  trustees. 
§  279.  Bankruptc}'  of  trustee. 

§  280.  The  resignation  of  trustees. 

§  281.  Where  the  same  person  is  executor  and  trustee. 

§  282.  The  proceedings  to  remove  and  substitute  trustees. 

§  283.  Where  all  parties  consent. 

§  284.  Of  the  vesting  of  the  property  in  the  new  trustees. 

§  285.  Duty  of  trustee  where  all  consent  to  his  discharge. 

§286.   Of  the  number  of  trustees. 

Appointment  of  trustees  under  a  power. 
§  287.  Trustees  cannot  appoint  their  .successors  or  new  trustees  unless  power  is 

given  in  the  instrument  of  trust. 


XX 11  CONTENTS   OF   VOLUME   I. 

§  288.  Caution  necessary  in  new  appointments. 

§  28^.  Powers  of  appointment  frequently  matters  of  personal  confidence. 

§  290.  Occasions  or  events  upon  which  new  appointments  may  be  made. 

§  291.  An  appointment  may  be  made  to  fill  a  vacancy  occurring  before  the 

death  of  the  testator. 

§  292.  Unfitness  and  incapacity. 

§  293.  Power  cannot  be  exercised  if  the  trust  is  already  in  suit  in  court. 

§  294.  By  whom  the  power  may  be  exercised. 

§  295.  The  power  must  be  strictly  followed. 

§  296.  Who  may  be  appointed  to  exercise  the  power. 

§  297.  Who  may  be  appointed  under  a  power. 

CHAPTER   X. 

Nature,  Extent,  antd  Duration  of  the  Estate  taken 

BY  Trustees 298-320 

§  298.   Where  trustees  take  and  hold  no  estate,  although  an  express  gift  is  made  to 
them.     Statute  of  uses. 

§  299.   Effect  of  the  statute  of  uses  upon  conveyancing  in  the  several  States. 

§  300.   Effect  of  the  statute  in  the  rise  of  trusts. 
§§  301,  302.     Rules  of  construction  which  gave  rise  to  trusts. 

§303.  The  word  "  seized." 

§  304.  The  primary  use  must  be  in  the  trustee  to  raise  a  trust 

§§  305,  306.     Personal  propertj'  not  within  the  statute. 
§§  307,  308.     Where  the  statute  executes  trusts  as  uses,  and  where  it  does  not. 

§  309.  Where  a  charge  upon  an  estate  will  vest  an  estate  in  trustees,  and 

where  not. 

§  310.  Where  the  trust  is  for  the  sole  use  of  a  married  woman. 

§  311.  Trusts  of  personalty  are  not  executed  by  the  statute. 

§  312.   The  statute  only  executes  the  exact  estate  given  to  the  trustee ;   but  the 
trustee  may  take  an  estate  commensurate  with  the  purposes  of  the  trust 
where  it  is  unexecuted  by  the  statute.    Rules. 
§§  313,  314.    Courts  may  imply  an  estate  in  the  trustee  where  none  is  given. 
§§  315,  316.   May  enlarge  the  estate  of  the  trustee  for  the  purposes  of  the  trust. 

§  317.   Illustrations,  explanations,  and  modifications  of  the  rule. 
§§  318,  319.   Rule  in  respect  to  personal  estate. 

§  320.   Distinctions  between  deeds  and  wills  in  England  and  the  United  States. 

CHAPTER   XI. 

Properties   and   Incidents   of  the  Legal  Estate  in 

THE  Hands  of  Trustees 321-356 

§  321.  Common-law  properties  attach  to  estates  in  trustees. 

§  322.  Dower  and  curtesy  in  trust  estates. 
§§  323,  324.     Dower  and  curtesy  in  equitable  estates  of  cestui  que  trust. 

§  325.  Forfeiture  and  escheat  of  trust  estates. 

§  326.  Trustees  must  perform  duties  of  legal  owners. 

§  327.  Forfeiture  and  escheat  of  the  equitable  estates  of  cestui  que  trust. 

§  328.  Suits  concerning  legal  title  must  be  in  name  of  trustee. 

§  329.  Who  has  possession  and  control  of  trust  estates. 


CONTENTS   OP   VOLUME   I.  xxiii 

§§  330, 331.  Who  has  possession  of  personal  estate.      Rights  and   privileges  of 
trustees. 

§  332.  Who  proves  debt  against  bankrupt. 

§  333.  Who  has  the  right  of  voting. 

§  334.  Trustee  may  sell  the  legal  estate. 

§  335.  May  devise  the  legal  estate.    But  see  §  341. 

§  336.  By  what  words  in  a  devise  the  trust  estate  passes. 

§  337.  Where  a  trust  estate  passes  hy  a  devise,  and  where 

§  338.  The  interest  of  a  mortgagee  in  fee. 

§  339.  Propriety  of  devising  a  trust  estate. 

§  340.  Whether  a  devisee  can  execute  the  trust. 

§  341.  Rule  in  New  York,  «&;c. 

§  342.  Where  a  testator  has  contracted  to  sell  an  estate. 

§§  343,  344.  Rights  of  the  last  surviving  trustee,  and  his  heirs  or  executors. 

§  345.  Trust  property  does  not  pass  to  bankrupt  trustee's  assignee. 

§  346.  A  disseizor  of  a  trust  estate  is  not  bound  by  the  trust. 

§§  347,  348.  Merger  of  the  equitable  and  legal  titles. 

§§  349,  350.  Presumption  of  a  conveyance  or  surrender  by  trustee  to  cestui  que  trust, 
§§  351-353.  Where  the  presumption  will  be  made,  and  where  not. 

§  354.  Must  be  some  evidence  on  which  to  found  the  presumption. 

§  355.  Is  made  in  favor  of  an  equitable  title,  not  against  it. 


CHAPTER   Xn. 
Executory  Trusts 357-376 

§§  357-359.  Nature  of  an  executory  trust.     The  rule  in  Shelley's  case. 

§  360.   Distinction  between  marriage  articles  and  wills. 

§  361.   Construction  of  marriage  articles  and  their  correction. 

§  362.  Where  strict  settlements  will  not  be  ordered. 

§§  363,  364.     Settlement  of  personal  property. 

§  365.  Construction  of  marriage  settlements. 

§  368.  Inducements  for  marriage. 

§  366.   Executory  trusts  under  wills. 

§  367.  Who  may  enforce  the  execution  of  executory  trusts. 

§§  369, 370.     Construction  of  executory  trusts  under  wills. 

§  371.  The  words  "  heirs  of  the  body  "  and  "  issue." 

§  372.   When  courts  will  reform  executory  trusts. 

§  373.   How  courts  will  direct  a  settlement  of  personal  chattels. 

§  374.   Whether  courts  will  order  a  settlement  in  joint-tenancy. 

§  375.   What  powers  the  court  will  order  to  be  inserted  in  a  settlement. 

§  376.   Settlement  will  be  ordered  cy pv'es  the  intention. 


CHAPTER   XIII. 

Perpetuities  A^^D  Accumulations 377-400 


§  377.  Definitions  of  a  perpetuity. 

§  378.  Executory  devises  —  springing  and  shifting  uses. 

§  379.  Growth  of  the  rule  against  perpetuities. 

§  380.  Application  of  the  rule.    Indefinite  failure  of  issue. 


XXIV  CONTENTS   OP   VOLUME   I. 

§  381.  Applies  to  the  possible  vesting  of  estates  —  not  to  the  actual. 

§  382.  Applies  equally  to  trust  and  legal  estates. 

§  383.  All  equitable  interest  that  may  not  vest  within  the  rule  is  void.    §  23. 

§  384.  Distinction  between  private  trusts  and  charitable  trusts. 

§  385.  A  proper  trust  to  raise  money  to  be  applied  contrary  to  the  rule. 

Making  estates  inalienable. 

§  386.  Equitable  estates  cannot  be  made  inalienable  in  England. 

§§  386  a,  386  b.  How  they  may  be  made  inalienable  in  some  of  the  United  States. 

§  387.  Exception  in  the  case  of  married  women. 

§  388.  How  trusts  can  be  limited,  so  that  cestui  que  trust  cannot  alienate. 

See§  815  a. 

§  389.  Limitation  of  personal  estate  to  such  tenant  in  tail  as  first  attains 

twenty-one. 

§  390.   When  courts  will  alter  trusts  and  when  not. 
§§  391, 392.     Statutes  of  various  States  in  relation  to  perpetuities. 
Accumulations. 

§  393.  Rule  respecting  trusts  for  accumulations. 

§  394.  In  England  the  rule  was  altered  by  the  Thellusson  Act. 

§  395.  Construction  of  the  Thellusson  Act. 

§  396.  Rule  against  accumulations  —  when  it  applies  and  when  not. 

§  397.  Application  of  the  income  in  cases  of  illegal  directions  to  accumulate. 

§  398.  Statutes  in  various  States  as  to  accumulations. 

§  399.  Accumulations  for  charitable  purposes. 

§  400.  Accumulations  in  cases  of  life  insurance. 


CHAPTER   XIV. 

General  Properties  and  Duties  of  the  Office  of 

Trustee 401-437  ft 

§  401 .  A  trustee,  having  accepted  the  office,  is  bound  to  discharge  its  duties. 

§  402.   He  cannot  delegate  his  authority  except  to  agents  in  proper  cases. 

§  403.  Not  responsible  if  he  follow  directions  in  employing  agents. 

§  404.  Where  agents  must  be  employed. 

§  405.  When  responsible  for  agents  and  attorneys. 

§  406.  When  not  responsible. 

§  407.  Difference  of  liabilit}-  in  law  and  equity. 

§  408.  Trustees  responsible  for  all  mischiefs  arising  from  delegating  discretion- 

ary powers. 

§  409.  Emploj'ing  agents  or  attorneys  may  not  be  a  delegation  of  authority  or 

discretion. 

§  410.   A  sale  or  devise  of  the  trust  estate  not  a  delegation  of  the  trust. 

§  411.   Several  trustees  constitute  but  one  collective  trustee. 
§§  412, 413.    When  they  must  all  act  and  when  not. 

§  414.   As  to  the  survivorship  of  the  office  of  trustee. 

§  415.   General  rule  as  to  liability  for  cotrustees. 

§  416.  May  make  themselves  liable,  where  otherwise  they  would  not  be. 

§  417.  Trustees  must  use  due  diligence  in  all  cases,  or  they  will  be  liable  for 

cotrustees. 

§  418.  Cases  of  a  want  of  due  care  and  prudence. 

§  419.  In  case  of  collusion  or  gross  negligence,  a  trustee  will  be  liable  for  acts 

of  cotrustees. 


CONTENTS   OP   VOLUME   I.  XXV 

§  420.  "When  cotrustees  are  liable  for  others  upon  sales  of  real  estate  under  a 

power. 
§  420  a.         Indemnifying  of  one  trustee  by  another. 
§  421 .  As  to  liability  of  coexecutors  for  the  acts  of  each  other. 

§  422.  An  executor  must  not  enable  his  coexecutor  to  misapply  the  funds. 

§  423.  When  executors  must  all  join  thej'  are  not  liable  for  each  other's 

acts;  but  they  must  use  due  diligence. 
§  424.  An  executor  must  not  allow  money  to  remain  under  the  sole  control 

of  his  coexecutor. 
§  425.  Executors  and  administrators  governed  by  the  same  rules. 

§  428.  Rule  where  coexecutors  or  cotrustees  give  joint  bonds  for  security  of  the 

administration  of  the  estate. 
§  427.   Trustees  can  make  no  profit  out  of  the  office. 

§  428.  Cannot  buy  up  debts  against  the  estate  or  cestui  que  trust  at  a  profit. 

§  429.  Cannot  make  a  profit  from  the  use  of  trust  funds  in  business,  trade,  or 

speculation. 
§  430, 431.  All  persons  holding  a  fiduciary  relation,  subject  to  the  same  rule. 

§  432.  Can  receive  no  profit  for  serving  in  their  professional  characters  a  trust 

estate. 
§  433.  Trustees  can  set  up  no  claim  to  the  trust  estate,  and  ought  not  to  betray 

the  title  of  the  cestui  que  trust, 
§  434.   In  England,  upon  failure  of  heirs  to  the  cestui  que  trust,  trustee  may  hold 

real  estate  to  his  own  use. 
§  435.    Speculative  questions. 

§  436.   In  the  United  States,  the  interest  of  the  cestui  que  trust  in  real  estate  escheats. 
§  437.  So  it  does  in  England  and  the  United  States  in  personalty. 
§  437  a.  Contracts  of  trustee. 
§  437  b.  Signature  of  trustee. 


CHAPTER   XV. 

Possession  —  Custody  —  Conversion  —  Investment  op 
Trust  Propertt,  and  Interest  that  Trustees  may 

BE    MADE    to    PAY 438-472 

§  438.  Duty  of  trustee  to  reduce  the  trust  property  to  possession. 
§  439.  Time  within  which  possession  should  be  obtained. 

§  440.  Diligence  necessary  in  acquiring  possession. 

§  441.  The  care  necessary  in  the  custody  of  trust  property. 
§  442.  In  what  manner  certain  property  should  be  kept. 

§  443.  Where  the  property  maj'  be  deposited. 

§§  444, 445.  How  money  must  be  deposited  in  bank. 

§  440.  Within  what  time  trustee  should  wind  up  testator's  establishment. 

§  447.  Trustee  must  not  mix  trust  property  with  his  own. 

§  448.  When  a  trustee  is  to  convert  trust  property. 
§  449.  General  rule  as  to  conversion. 

§  450.  When  a  court  presumes  an  intention  that  property  is  to  be  converted. 

§  451.  When  the  court  presumes  that  the  property  is  to  be  enjoyed  by  cestui 

que  trust  in  specie. 


XXVI  CONTENTS   OP   VOLUME   I. 

§  452.   Of  investment. 

§  453.  As  to  investment  in  personal  securities. 

§  454.  As  to  the  employment  of  trust  property  in  trade,  business,  or  speculation. 

§  455.  Rule  as  to  investments  in  England. 

§  456.  Rule  in  the  United  States. 

§§  457,  458.     Rule  as  to  real  securities. 

§  459.  Of  investments  in  the  different  States. 

§§  460, 461.     Construction,  where  the  instruments  of  trust  direct  how  investments 
may  be  made. 

§  462.  Within  what  time  investments  must  be  made. 

§  463.  Trustees  must  not  mingle  their  own  money  in  investments. 

§  464.  Must  not  use  the  trust  money  in  business. 

§  465.  Original  investments  and  investments  left  b}'  the  testator. 

§  466.  Changing  investments. 

§  467.  Acquiescence  of  cestui  que  trust  in  improper  investments. 

§  468.   Interest  that  trustees  must  pay  upon  trust  funds  for  anj'  dereliction  of  duty. 

§  469.  When  he  is  directed  to  invest  in  a  particular  manner. 

§  470.  When  he  improperly  changes  an  investment. 

§  471.  When  compound  interest  will  be  imposed,  and  when  other  rules  will  be 

applied. 

§  472.  Rule  where  an  accumulation  is  directed. 


INDEX  TO   CASES   CITED. 


All  sections  up  to  472  are  in  Vol.  I. ;  all  after  472  are  in  Vol.  II.      The  dash  ( )  before  a 

case  indicates  that  it  appears  for  the  first  time. 


A. 

Section 

Adams  v.  Claxton 

Section 
443,  914 

Abbey  v.  Dewey 

215 

V.  Clifton 

402 

466 

851,  900 

Abbott,  Ex  parte 

649 

V.  Cole 

635, 

706,  714 

Pet'r                     282, 

287 

334,  340 

V.  Gale 

464 

V.  Amer.  Hard  Rubber  Co.        404 

V.  Gamble 

656 

V.  Baltimore 

918 

V.  Green 

281 

V.  Bradstreet              891,  899,  903  a 

V.  Guerard 

299 

V.  Foote 

330 

V.  Jones 

929 

V.  Geraghty 

361 

V.  Lambert 

718 

V.  Gibbs 

795,  796 

V.  Lavender 

639 

V.  Massie 

272 

V.  Leavens 

438 

V.  Reeves              832, 

877 

884,  926 

V.  Mackey 

661 

Abby  V.  Dego 

678 

V.  Paynter 

274, 

287,  288 

Abeel  v.  Radcliff 

83 

i\  Perry 

305,  748 

Abel  V.  Heathcote 

769 

V.  St.  Leger 

873,  881 

Abell  V.  Howe 

221,  222 

V.  Taunton 

270 

273, 

502,  806 

Abercrombie  v.  Bradford 

590 

Adamson  v.  Armitage 

648 

Aberdeen  v.  Blaikie 

206 

Addams  i:  Hefferman 

234 

Abernaithy  v.  Abernaithy 

275,  627 

Addis  V.  Campbell 

187,  188 

Abney  v.  Kingsland 

149 

Addison  v.  Bowie 

612 

V.  Miller 

196 

V.  Dawson 

189 

Abraham  v.  Almon 

112 

V.  Mascall 

189 

Abshire  v.  Carter 

770 

Adey  v.  Arnold 

260 

Aclierley  v.  Roe 

872 

Adler  v.  Sewell 

328 

Acker  v.  Phoenix 

97 

Adlington  v.  Cann 

75, 

77,  83,  88,  90. 

Ackerman  v.  Emott 

430, 

456,  459, 

92,  93,  739 

460,  471 

Adium  V.  Yard 

590,  596 

Ackland  v.  Gaisford 

122 

Adye  v.  Feuilleteau 

453,  464 

V.  Lutley 

317 

Affleck  V.  James 

499 

Ackleston  v.  Heap 

294 

Agar  V.  Fairfax 

871 

Ackroyd  v.  Smithson 

160,  499 

Agassiz  V.  Squire 

511a 

Acton  V.  White 

670 

Aggas  V.  Pickerell 

855,  862 

V.  Woodgate 

585, 

593,  596 

Agnew  V.  Fetterman 

559 

Adair  v.  Brimmer 

422,  467 

Aguilar  v.  Aguilar 

634, 

658,  659 

V.  New  River  Co. 

885 

Ahearne  v.  Hogan 

193,  204 

V.  Shaw 

217 

847,  892 

Ahsend  v.  Odiorne 

232 

Adams  v.  Adams 

38, 

182,  312 

Aiken  v.  Smith 

318,  353 

V.  Brackett 

562,  570 

Ainsley  v.  Mead 

680 

V.  Bradley 

215 

Ainslie  v.  Medlycott 

34, 171 

V.  Broke 

460,  778 

Airey  i\  Hall 

98, 

100, 

101,  821 

V.  Buckland 

414 

Aislabie  v.  Rice 

518 

V.  Chaplin 

380 

Albany  Ins.  Co.  v.  Bay  655, 656, 660, 768 

XXVIU 


INDEX    TO    CASES    CITED. 


Albany's  Case 
Albee  v.  Wyman 
Albert  v.  Savings  Bank 

V.  Ware 
Alcock  V.  Sloper 

V.  Sparhawk 
Aldborough  v.  Frye 
Alden  v.  Gregory 
Aldersen,  Ex  parte 

V.  Temple 
Aldrich  v.  Cooper 
Aldridge  v.  Dunn 

V.  Westbrooke 
Aleman\'  v.  Weusinger 
Alexander,  In  re 

V.  Alexander 

V.  Brame 

V.  Crittenden 

V.  Crosbie 

V.  Kennedy 

V.  McCulloch 

V.  McMurray 

V.  Mills 

V.  Mullins 

V.  Pendleton 

V.  Saulsbury 

V.  Summey 

r.  Warrance 

V.  Wellington 

V.  Williams 
Aleyn  v.  Belchier 
Alger  V.  Fa  J' 
V.  North  End  Savings  Bank 


Allen,  Ex  parte 

V.  Addington 

v.  Allen 

V.  Backhouse 

V.  Chambers 

V.  Chatfield 

V.  Coster 

V.  De  Witt 

V.  Gaillard 
V.  Gillette 

V.  Henderson 

V.  Hightower 

V.  Imlett 
V.  Jackson 

r.  Knight 

V.  Macpherson 

V.  Maddock 

V.  Montgomery  Railway 

V.  Papworth 

V.  Parkham 

v.  Rumph 
V.  Russell 

V.  Saver 

V.  Wilkins 
V.  Withrow 

V.  Worley 
Allerton  v.  Knowell 


Section 

765 

672 

242 

14 

451,  547 

570 

188 

861 

68 

587 

567,  573 

237,  289 

888,  898 

820  a 

482 

112,  385,  408,  440, 

510,  511a,  811 

103 

639 

220 

205 

634 

234,  559 

784 

882 

218,  219 

685 

456 

140,  143,  144,  324 

29,  69 

863 

511,  511a 

602  ^■ 

82 

189,  618 

179 

629 

581,  597 

84 

199,  602  V 

614,  615 

765 

458,  460 

195 

366,  380 

678 

17,  328 

206 

218 

182 

93 

757 

654 

380 

361 

828 

621,  858 

640 

86 

863 

634 


Alley  V.  Lawrence 
Alleyne  t-.  Darcy 
AUis  V.  Billings 
Allison  IK  Allison 

V.  Kurtz 

V.  Wilson 
Allman  v.  Pigg 

Almond  v.  Wilson 

AUoway  v.  AUoway 

V.  Braine 
Alsager  v.  Spaulding 

Alsbrook  v.  Reid 

Alsop  V.  Bell 
Alston  V.  TroUope 
Alsworth  V.  Cordly 
Altimius  v  Elliott 
Alverson  i'.  Jones 
Amand  v.  Bradbourne 
Ambrose  v.  Ambrose 


Section 
493,  5116,783,  784 
246,  848,  876,  907 
35,  189 


Amer.  Acad. 


183 
162,  511  c 
600 
171 
126 
248 
869 
212 
476  a 
908 
481 
131 
915 
677 
894 
77,  82,  126,  137 


Harvard  College 
701,  724, 
Amer.  Bible  Soc.  v.  Marsh 

V.  Wetmore 
Amer.  Exch.  Bank  v.  Inloes 
Ames  V.  Armstrong 

V.  Browning 

V.  Downing 

V.  Foster 

V.  Parkinson 

V.  Port  Huron 

V.  Scudder 

Amesbury  v.  Brown 

Ammont  v.  New  Alexandria,  &c 


00, 
748 
748 
748 
590 
426 
205 
428,  526,  847,  910 
686 
440,  461,  469 
194 
471 
571 


Turnpike  Co 
Amory  v.  Green 

V.  Lord 

V.  Lowell 

V.  ]Meredith 

V.  Reilly 
Amphlett  v.  Parke 
Ancaster  v.  Mayer 
Anderson.  In  re 

V.  Anderson 

r.  Austin 

V.  Baumgartner 

V.  Burchell 

V.  Burwell 

V.  Dawson 

V.  Earle 

V.  Fuller 

V.  HoUoman 

V.  Jones 

V.  Lemon 

V.  Mather 

V.  Miller 

V.  Netr 

V.  Stacher 
Anderton  v.  Yates 
Anding  v.  Davis 
Andover  v.  Merrimack  County 
Andres  v.  Miller 


59 

460 

391,  396 

552,  554 

337,  511  c 

239 

151 

562,  567 

280 

646,  652,  672 

602  n 

602  n 

228 

229.  869 

511  h,  655 

262,  281 

591 

602  i 

126,  602  ;■ 

538 

334,  603,  605,  610 

426 

918 

873 

613 

75,  91 

642 

599 


INDEX   TO    CASES    CITED. 


XXIX 


Andrew  v.  Andrew 
V.  Bible  Society 
I'.  Ludlow 

f.  Schmitt 

V.  Trinity  Hall 


Section 
547 
45,  402 
592 
469 
272 


V.  Wri^ley    228,  809,  810,  830,  865 
Andrews,  Ex  parte      427.  433,  487,  863 

V.  Andrews  700,  701,  736 

V.  Bank  of  Cape  Ann  117 

V.  Bishop  561 

V.  Clark  154 

V.  Essex  Ins.  Co.  186 

V.  Hobson  98,  428 

V.  Jones        200,  627,  632,  642,  645 

V.  Partington        117,  612,  615,  620 

V.  Smithwick  864 

V.  Sparhawk        598,  795,  798,  802 

Angell ;;.  Dawson  466,  476 

Angerstein  v.  Martin  461,  550,  551 

Angier  v.  Angier  672,  673 

V.  Stannard      351,  476  a,  901,  922, 


927,  928 

Angle,  Ex  parte 
Angus  V.  Angus 
Amiesley  v.-  Ashurst 
V.  Simeon 

848,  876 

72 

474 

330,  520 

Annis's  Case 

693 

Anon.  116,  126,  136,  144,  157,  192,  219, 
226,  244,  255,  270,  275,  330,  402, 
415,  416,  421,  428,  431,  432,  453, 
463, 474,  511  b,  581, 596,  597, 600, 
602  q,  618, 621, 649, 663,  695,  701, 
710,  712,  725,  770,  782,  795,  796, 
810,  815,  816,  818,  819,  827,  835, 
839,  841,  903  a,  904 


Ansley  v.  Pace 

820  fl 

Anstice  v.  Brown 

863 

Anthony  v.  Eees 

805 

Antones  v.  Eslava 

7.30 

731,  748 

Antrobus  v.  Smith       97, 

100, 

103,  107, 
108,  367 

Aplyn  V.  Brewer 

416,  421 

App  V.  Lutheran  Congregation        733 

Apple  V.  Allen 

646 

Appleton  V.  Boyd 

136 

Apreece  v.  Apreece 

119 

Arbuthnot  u.  Norton 

69 

Archer  v.  Hudson 

201 

V.  Moss 

182 

V.  Preston 

71 

V.  Rooke 

647 

,  648,  652 

Archibald  v.  Wright 

5116 

Ardill  V.  Savage 

274 

Arglasse  v.  Muschamp 

71 

Arlin  v.  Brown 

232,  235 

Arms  V.  Ashley 

83 

Armstrong  v.  Armstrong 

380 

V.  Campbell 

195, 

502  f,  863 

V.  Lane 

892,  901 

V.  Miller 

462,  468 

V.  Morrill 

259,  264 

Armstrong  v.  Park 

V.  Ross 

V.  Stoval 

I'.  Walkup 
Armstrong's  Estate 
Arnold  v.  Byard 

V.  Chapman 

V.  Congreve 

V.  Cord 

V.  Garner 

V.  Gilbert 

V.  Macungie  Bank 

V.  Ruggles 
Arnony  v.  Steinbrenner 
Arnot  V.  McClure 
Arran  v.  Tyrawley 


Section 

500 

232 

661 

462 

892,  918 

918 

160 

385 

135,  172 

431,  432,  904 

391,  511 

247  a 

639,  640 

891 

602  j; 

861 


Arrington  v.  Yarborough  639 

Artcher  v.  McDuffie  843 

Arthur  v.  Arthur  184,  665 

V.  Coram.  Bank     31,  588,  590,  757 

V.  Marster  468 

Arundel  v.  Phillpot  248 

Asay  V.  Hoover  336,  768 

Ash  V.  Bowen  387,  652,  670 

Ashburnliam  v.  Thompson        468,  900 

Ashburton  v.  Ashburton  605,  610 

Ashby  V.  Ashby  626,  641 

V.  Blackwell  929 

Ashcroft  V.  Little        647,  648,  649,  651 

Ashlfey,  In  re  615 

V.  Bailey  222 

Ashton  V.  581 

V.  Ashton  371,  515 

I'.  Atlantic  Bank  225,  814 

V.  Langdale  61,  86,  704 

V.  McDougall  213,  6.53 

V.  Thompson  200 

V.  Wood  340,  695,  705 

Ashton's  Char.  725 

Ashurst  V.  Ashurst  780 

V.  Given       66,  299,  305,  386  a,  555 

V.  Martin  592 

V.  Mill  185 

Ashurst's  App.  207,  230,  865,  866 

Ash  worth  v.  Outram  666 

Aspinall  v.  Jones  529 

Aster  V.  Wells  222 

Astley  V.  Milles  347 

Aston  V.  Aston  665 

V.  Galloway  676 

V.  Wood  157 

Aston's  Estate  462,  468,  918 

Astreen  v.  Flanagan  143,  144 

Atchcrley  v.  Vernon     38,  231,  616,  648 

Atcheson  v.  Atcheson  637,  644 

V.  Robertson  420,  894,  900 

Atchin's  Trusts,  hi  re  714 

Athenaeum  v.  Pooley  831 

Atherton  v.  Mowell  634 

V.  Worth  594 

Athey  v.  Knotts  632 


INDEX   TO    CASES   CITED. 


Athol  V.  Derly 
Atkin  V.  Lord 
Atkins  V.  Allen 

V.  Kron 

V.  Rowe 
Atkinson,  In  re 

V.  Atkinson 

V.  Jordan 

V.  Marietta 
Att'y-Gen.  v.  Alford 

V.  Andrew 

V.  Andrews 

V.  Arran 

V.  Aspinall 

V.  Bacchus 

V.  Bain 

V.  Baliol  Coll, 

V.  Barbour 

V.  Baxter 

V.  Bedford 

V.  Beverley 

V.  Biddulph 

V.  Black 

V.  Blizard 

V.  BoUes 

V.  Boucherett 

V.  Boultbee         721, 

V.  Bourchette 

V.  Bovill  698, 

V.  Bowyer  693, 

V.  Brackenbury 
V.  Bradlee 
V.  Brandeth 
V.  Brazenose  College 
I'.  Brentwood  School 
V.  Brereton  694, 

V.  Brettinghara 
V.  Brewer's  Co. 

V.  Brickdale 

V.  Bristol 

V.  Brown 

V.  Browne's  Hospital 

V.  Buckland 

V.  Bucknall 

V.  BuUer 

V.  Bunce 

V.  Burdett 

V.  Bushly 

V.  Caius  College    42, 

V.  Calvert 

V.  Carroll 

V.  Chester 

V.  Chesterfield 

V.  Christ  Church 

V.  Christ's  Hosp. 

v.  Clack        282,  283, 

V   Clapham 

V.  Clare  Hall 


Section 
71 
678 
545 
55,  64,  554 
135 
438 
242,  812 
592,  694 
757 
471 
700,  729 
478,  704 
283 
23,  81,  384 
637 
739 
724,  725,  883 
286 
702,  718,  724 
742 
725,  745 
737 
743 

698,  699,  733 
700 
185 

724,  725,  729, 
730 
733 

699,  725,  733 
700,  730,  736, 

739,  818 

511c 

715 

698,  733 
745 

694,  695 
701,  732,  746 

737 

745,  863,  871, 

900,  901 

412 
156,  725,  745 
707,  724,  879 

742 

255 

699,  746 
336,  337 

733 
739 
704 

276,  900,  901 
733 
724 

701,  736,  741 
907 
725 

745,  865,  900 

293,  474,  508 
733 
743 


Att'y 


Section 
Gen.  V  Clarendon  42, 209, 742,  743 


Clarke 

698,  699 

Clergy  Society 

734,  748 

Clifont 

278 

Clifton 

733 

Cock 

701,  702 

Columbine 

724 

Combe 

730 

Comber 

699,  712 

Coopers'  Co. 

276,  725 

Cordwainers' 

Co. 

725 

Coventry 

745 

Cowper 

278 

Craven 

704 

724,  725 

Crook 

742 

Cullum 

696,  747 

Cuming 

278, 

413, 

414,  490, 
888,  894 

Dallgars 

848 

Daugers 

903 

Daugous 

278 

Dedham  School 

742,  743 

Dixie 

725,  742 

Dixon 

441 

Downing 

38, 

248, 

249,  694, 

701 

730,  736 

Doyley 

271 

273 

715,  721 

Drapers'  Co. 

725 

900,  901 

Drummond 

275 

733,  901 

Dublin 

694,  724 

Dudley 

195,  230 

Duley 

867 

Duhvich  College 

742 

Dj'son 

283 

Eastlake 

478,  707 

East  Retford 

844,  900 

Exeter  698,733,  745,  855, 863, 869 
,  Federal  St.  Meeting-House  710, 
712,  732,  734,  745,  860,  864 
Fishmongers'  Co.     718,  725,  745 
Fletcher  721,  724,  729 

Floyer  295,  414,  490 

Forster  23,  384 

Foster  746 

Foundling  Hospital  42,  742,  816 
Galway  725,  746 

Garrison  732,  734,  748 

Gascoigne  725 

Gaunt  742 

Geary  477 

Gibson  724 

Gill  380,  736 

Gladstone  701,  702,  721,  731 
Glasgow  College  724,  725,  733 
Gleg  19,408,414,699,721,733 
Glyn  724,  725,  729 

Goldsmiths'  Co.  733 

Gould  733 

Goulding  725,  729 

Green  724,  730 

Greenhill  383 


INDEX   TO    CASES    CITED. 


XXXI 


Section 
Att'y-Gen.  v.  Greenhouse  847 

V.  Grocers'  Co.  740,  747 

V.  Guardians  of  Poor  478 

V.  Guise  724,  725,  729 

V.  Haberdashers'  Co.  119,  156, 

710,  712,  725,  746 
113,  116,  736 
769 
735,  746,  747 
23,  384,  704,  707,  885 
732 


Hall 

Hamilton 

Hartley 

Heelis 

Heiner 

Herrick 

Hewer 

Hickman 

Hicks 

Higham 

Hobert 

Holland 

Ilotham 

Hungerford 

Hurst 

Hutton 

Ironmongers'  Co. 


729 
710 
249,  701,  702 
724,  725 
440 
900 
419 
699 

726,  903"a 
734 
42,  699,  723, 
724,  725,  729 
'.Jackson  710,729,746 

7.  Jeanes  >  732,  746 

}.  Johnson  699 

;.  Jolly        701,  724,  726,  728,  7.30, 
731,  748 
.'.  Kell  692,  733,  747 

>.  Kerr  737 

\  Landerfield  42 

;.  Lawes     701,  702,  724,  725,  903  a 
?.  Leeds  325 

,'.  Leicester  246,  846,  907 

;.  Lepine  741 

;.  Litchfield  295,  414,  490 

.'.  Liverpool  816 

;.  LlandafE  725 

;.  Locke  414,  694,  742 

;.  London     276,  282,  701,  724,  72-5, 
729,  741,  894 
;.  Lonsdale  700,  704 

;.  Magdalen  College  742,  800 

;.  Manners  480 

;.  Mansfield  696,  733,  735 

;.  Marchant  725 

;.  Margaret    &    Regius   Prof. 

Cambridge  700,  733 

;.  Master  of  Catharine  Hall      725, 
742,  745 
^.  Mathews  699,  719,  729 

;.  Mercers'  Co.  747 

;.  Merchant  Tailors'  Co.  747 

:\  Merrimack  Manuf.  Co.  782 

;.  Middleton  094,  724,  732,  742,  746 
'}.  MinshuU  724,  725 

;.  Monro        432,  7-34,  745,  747,  863 
;;.  Moor's  Ex'rs  747 

;.  Moore    476  a,  694,  733,  742,  748, 
86(i,  928 


Section 
Att'y-Gen.  v.  Moseley  511 

V.  Murdoch  733,  734 

V.  Newark  737 

V.  Newbury  Corp.  875 

V.  Newcombe  2-3,  384 

V.  Newman  695,  724 

V.  Northumberland  699 

V.  Norwich  478,  890,  910,  915 

V.  Oakaver  701 

V.  Oglander  729,  730,  746 

V.  Old  South  Society         699,  743. 
745,  748 
V.  Owen  484 

V.  Oxford  724,  726 

V.  Painters'  Co.  699 

V.  Parker  701,  732,  746 

V.  Parnther  189,  190,  665 

V.  Payne  745 

V.  Peacock  699 

V.  Pearce  699,  720 

V.  Pearson  275,  290,  702,  733, 

734,  746,  915 
V.  Fitter  451 

V.  Piatt  693,  7.30,  783 

V.  Poulden  151,  395,  -397 

V.  Power  718,  726 

V.  Price  256,  698,  699 

V.  Pyle  724 

V.  Kance  699,  729 

V.  Kandell  416,  417,  443 

V.  Ref.  Prot.  Dutch  Church  745 
V.  Rochester  425,  733,  734,  745 
V.  Ruper  701 

V.  Rye  789 

V  St.  Cross  Hospital  742 

V.  St.  John's  Hospital  42,  745 

V.  Sands  3,  64,  .327,  434 

V.  Scott  19,  301,  804,  323,  408, 

409,  413,  490,  745 
I'.  Shearman  413 

V.  Sherborne  School  733 

V.  Shore  275,  287,  733 


.  Shrewsbury 

23, 

.384,  707 

.  Skinners'  Co. 

694, 

72-5,  745 

.  Smart 

732,  746 

.  Solly 

468 

.  Sothen 

192 

.  South  Molton 

725 

.  Speed 

699 

.  Stafford 

42 

.  Stamford 

278,  748 

.  Stephens 

249, 

282,283 

.  Stepney 

701 

.  Sturge 

741 

.  Syderfin 

719, 

724,  729 

.  Tancred 

694 

.  Todd 

718 

.  Townsend 

694 

.  Trinity  Church 

699 

725,  746 

.  Utica  Ins.  Co. 

42 

.  Vigor 

5110 

xxxu 


INDEX    TO    CASES    CITED. 


Section 

Att'y-Gen.  v.  Vint       699,  718,  724,  72U 
V.  Vivian  701,  7o3,  746,  747 

V.  Wallace  694,  701,  728,  748 

V.  Wansay  7oO 

V.  Warren  737,  746 

V.  Warrick  724 

V.  Wax  Chandlers'  Co.  725,  744 
V.  Weymouth  160 

V.  Wharwood  42,  700,  729,  732 
V.  Whitechurch  709,  724 

V.  Whiteley  732,  746 

V.  Wilkinson  668,  698,  699,  733 
V.  William  and  Mary  Coll.  735 
V.  Williams  700,  709 

V.  Wilson       31,  161,  848,  875,  879, 
900 


V.  Winchelsea 

V.  Windsor 

V.  Winsor 

V.  Wisbert 

V.  WyviUe 

V.  York 
Atwaters  v.  Burt 
Atwood  V.  Small 

V.  Vincent 
Aubrey  v.  Brown 

V.  Middleton 
Aubuchon  v.  Bender 

V.  Lory 
Auby  V.  DoyI 

Augusta  V.  Walton 

Austin  V.  Austin 

V.  Bank  of  England 

V.  Bell 

V.  Brown 

V.  Halsey 

V.  Johnson 

V.  Martin 

V.  Munro 

V.  Shaw 

V.  Taylor 

V.  Wilson 

Australian,  &c.  Co.  v.  Mounsey  486,  754 
Aveline  v.  Melhuish  851 

Aveling  v.  Knipe  133,  136 

Averill  v.  Loucks  590,  m'lff 

Avery  v.  Griffin  48 

V.  Osborne  900 

V.  Tyringliam  734 

Avison  V.  Holmes  388 

Awdley  v.  Awdley  611 

Aycenena  v.  Peries  843 

Ayer  v.  Aver      .  310 

Ayliffe  v.  ':Murray  195,  347,  904 

Aylsworth  v.  VVfiitcomb  104 

Aylward  v.  Kearne  200,  230 

Aymar  v.  Roff  603 

Aynesworth  v.  Halderman  828 

Aynsworth  v.  Pratchett  615 

Ayres  v.  Methodist  Church         45,  748 

V.  Ward  270 


287 

157,  745 

725 

725 

888 

742 

784 

171 

232 

636 

570 

104 

414 

121 

277 

275,  649 

242 

591,  592,  593 

64,  131,  140 

569 

591 

273,  804 

526 

411 

298,  357,  359,  372 

810 


B. 

Baal  V.  Morgher 
Babb  V.  Reed 
Babbitt  v.  Babbitt 
Babcock  v.  Case 

i,'.  Hubbard 
Baber,  Re 
Back  V.  Andrew 

V.  Gooch 
Backhouse  v.  Middleton 
Bacon  v.  Bacon 

V.  Bronson 

V.  Mclntire 

V.  Proctor 
V.  Rives 

;;.  Taylor 
Bacon's  App. 
Bacot  V.  Hayward 
Baddam,  Ex  parte 
Badhara  v.  Mee 
Badger  i-.  Badger 
Baegle  v.  Wentz 
Bagenal  i-.  Bage 
Baggett  V.  Meux 
Baggot  V.  Baggot 
Bagot  V.  Bagot 
Bagshaw  v.  Newton 

V.  Spencer  305, 

V.  Winter 

Bahin  v.  Hughes 

Bailey  v.  ^Etna  Ins.  Co. 

V.  Bailey 

V.  Brown 
V.  Col  ton 

V.  Ekins 

V.  Elkins 

V.  Gould 

V.  Harris 

V.  HoUister 

V.  Inglee 
V.  Irwin 

0.  Jackson 

V.  IJoj'd 

V.  Merritt 

V.  Pearson 

V.  Kobinson 

V.  Stiles 

V.  Watkins 

V.  Wilson 

V.  Young 

Bailey,  Petitioner 

Bain  i'.  Lescher 
Bainbridge  c.  Ashburton 

V.  Blair        275,  279, 
820. 
Baines  v.  Dixon 

r.  McGee 
Baird  v.  Hall 
Baird's  Appeal 
Baker  v.  Barney 


Section 

647 

705,  710 

117,  248,  275 

179 

426 

593 

144,  146 

587 

581,  828 

404,  409,  417 

173 

856 

380,  396 

863 

299 

304,  311,  359 

440,  481 

15,  118,  784 

869 

171,  172,  215 

584 

647,  671 

900 

276 

903  « 

315,  358,  359, 

366,  371 

636,  645 

420  a 

199,  602  hb 

93,  289 

500 

815  c 

260 

802 

898,  902 

75 

331 

838,  877 

86 

654,  658 

511c 

m-iff 

661,  675,  680 

205,  602  y 

183 

206,  209 

217 

440 

502 

648 

337 

282,  432,  818, 

,  885,  895,  904 

581 

205,  225 

456 

344 

672 


Section 

Baker  )•.  Biddle 

843,  865 

V.  Bliss 

225,  814 

V.  Bradley 

201,  670 

V,  Brown 

815  <j 

V.  Carter 

849,  900 

V.  Crookshank 

598 

V.  Disbrow 

466,  843 

V.  Duiiiaresque 

72 

V.  Button 

701 

V.  Evans 

98 

V.  Foster 

202 

V.  Gregory 

684 

V.  Hall 

639 

V.  Hatliaway 

685 

V.  Hollabaugh 

84 

V.  Leathers 

143 

,  144,  147 

V.  Lee 

293 

V.  Lorillard 

610 

V.  Monk 

189 

V.  Moseley 

112 

V.  Paine 

226 

V.  Read 

205,  229 

V.  Reel 

118,  121 

V.  S.  &  W.  Mo. 

R.  Co. 

129 

V.  Smith 

724,  748 

V.  Sutton 

705 

V.  Tucker 

201 

V.  Vining 

126,  132 

137,  139 

r.  Washington 

330 

V.  Whiting 

863,  864 

V.  Wind 

226 

Bakewell  v.  Ogden 

783 

Balbeek  v.  Donaldson 

162 

Balch  V.  Hallett 

545 

Balchen  u.  Scott 

261 

262,  402 

B^lckow  V.  Heme  Bay  Pier  C 

0.        752 

Baldridge  v.  Walton 

602^,  60 

2p,m2t, 
602  u 

Baldwin  v.  Allison 

195,  602  n 

V.  Baldwin 

626 

V.  Bannister 

243.  431 

V.  Canipfield 

131,  164 

I'.  Humphrej'^ 

95,  343 

V.  Johnston 

127 

V.  Porter 

262 

V.  Tattle 

861 

Baldy  v.  Brady 

559 

Bale  V.  Coleman 

357, 

359,  360 

I'ak'S  V.  Perry 

402,  409 

Balfe  V.  Lord 

761 

Balford  d.  Crane 

147 

Balfour  v.  Wclland 

593, 

596,  597, 
793,  794 

Balguey  v.  Hamilton 

835 

Ball  V.  Alexander 

748 

V.  Ball 

440 

r.  Coutts 

633,  636 

!•.  Harris 

597,  768, 

802,  809 

V.  Maurice 

189 

r.  Montgomery   213,  632,  633,  634, 
901 


ASES    CITED. 

XXXIU 

Sertion 

Ballard  r.  Carter 

336 

V.  Taylor 

647 

Ballew  V.  Clark 

35 

Ballou,  Pet'r 

282 

Balls  V.  Strutt 

520,  816 

Balsh  V.  Hyham                  48£ 

,  909,  915 

Balteel  v.  Plumer 

254 

Baltimore  r.  Caldwell 

195 

Baltimore  Ins.  Co.  v.  Dalrym 

pie       199 

Bambaugh  v.  Bambaugli 

610 

Bampton  v.  Birchall 

862 

Bancroft  v.  Ashhurst           602  bb,  603  h 

V.  Cousen 

127,  814 

V.  Lepieur 

920 

Bangs  V.  Smith 

337 

Banister  ".  McKenzie 

460 

Bank  r.  Benning 

602  aa 

V   Campbell 

239 

V.  Guttschlick 

602  bb 

V.  Macy 

199 

V.  Payne 

222 

V.  Rutland 

72 

V.  Simonton 

127 

V.  Tyrrell 

202 

('.  Weeks 

526 

Bank  Com'rs  v.  B'k  of  Biiffal 

0         207 

Bank  of  America  ;;.  Pollock 

127,  128, 
135 
242 

Bank  of  England  v.  Lunn 

V.  Moffat 

242 

V.  Parsons 

242 

Bank  of  Mobile  v.  Clark 

591 

Bank  of  Orleans  r.  Torrey 

205,  206 

Bank  of  Republic  v.  Baxter 

179 

Bank  of  Turkey  i\  Ottoman  Co.       827 

Bank  of  U.  S.  v.  Beverley 

808,  559, 

571,576 

V.  Biddle 

229,  230 

V.  Carrington 

75,  126 

V.  Daniels 

855 

V  Davis 

222 

V.  Hirst 

918 

V.  Housman 

162 

('  Huth 

588,  593 

Bank  of  Virginia  v.  Adams 

72 

V.  Clegg 

610 

y.  Craig 

242 

Bank  of  Wellsborough  v.  Bake     247  a 

Banks  v.  Booth 

750 

V.  Judah 

206 

V.  Le  Despencer 

390 

V.  May 

97 

I'.  IMielan 

730,  748 

V.  Sutton 

323 

V   Wilkes 

415,421 

Baptist  Assoc.  ?•  TLart  46,  694 

724,  748 

Baptist  Soc.  (,-.  Hazcn  17,  299 

312,  328 

Barber,  Ex  parte 

338 

V.  Barber 

862 

?'.  Cary 

784 

V.  Slade 

G39,  640 

XXXIV 

IND 

EX   TO    CASES   CITED. 

Section 

Section 

Barbin  v.  Gasford 

137 

Barnum  v.  Hampstead 

590 

Barclay  >•.  Maskelyne 

699,  700 

Barnwall  v.  Baniwall 

871,  872 

V.  Russell 

327 

Barnwell  v.  Cawdor 

566 

V.  Wainwrig^lit 

544,  545 

Barr  v.  Cubbage 

*28 

Barilstown,  &c.  R.  R.  Co.  v. 

Met- 

V.  Weld 

478 

calfe 

754,  756 

Barr's  Trusts 

438 

Bardsvvell  v.  Bardswell 

112 

113,  115 

Barrack  v.  McCulloch 

664,  665 

Bardwell  v.  Bardwell 

572 

Barratt  v.  Wyatt 

543 

Barford  v.  Street 

655 

Barren  v.  Joy 

79,  82 

Bargrer's  Appeal 

554 

V.  Hawrick 

226 

Barker,  In  re 

331 

Barrett  v.  Buck 

160 

V.  Barker              127 

401 

812,  843 

V.  Buxton 

191 

V.  Devonshire 

795 

V.  French 

299 

V.  Frye 

82 

V.  Hartley 

429.  904 

V.  Hall 

586 

589,  591 

V.  Marsh 

115,  119 

V.  Hill 

231 

V.  Reids 

592 

V.  Greenwood        305 

306 

307,  312 

V.  Whitney 

202 

V.  Ins.  Co. 

206 

Barribeau  v.  Brant 

136 

V.  May 

17 

Barrings  v.  Willing 

404 

V.  McAuley 

456 

Barrington  v.  Liddell 

397,  584 

V.  Peile 

282 

V.  Tristram 

903  a 

I'.  Richardson 

330,  520 

Barrington's  Estate 

452,  477 

i\  Woods 

645,  748 

Barroilhet  v.  Anspacher 

126 

Rarkley  v.  Dosser 

329 

Barron  v.  Barron  82, 127 

137 

627,  628, 

Barkley  v.  Lane 

226 

629,  633,  634, 

635, 

636,  639, 

V.  Reay 

819 

647 

,  654,  673 

V.  Tapp 

127 

V.  Greenbough 

181,  226 

Barksdale  v.  Finney 

428,  836 

V.  Wadkin 

64 

,  327,  434 

Barksworth  v.  Young 

82.  84 

Barrs  v.  Fewke 

152,  157 

Barlow  i:  Grant           119, 

615 

618,  915 

Barry  i\  Ley 

701 

V.  Heneage 

103 

V.  Marriott 

457 

Barnaby  v.  Griffin 

361 

V.  Merchants'  Exchange  Co.        31 

Barnard  v.  Bagshaw 

418 

V.  Woodham 

888 

V.  Duncan 

780,  786 

Barrymore  r.  Ellis 

670 

V.  Hunter 

202,  831 

Barstow  ik  Kilvington 

226 

V.  Jewett 

133 

Barter  v.  Wheeler 

761 

V.  MinsliuU 

112 

Bartle  v.  Wilkins 

891,  892 

Barnardiston  v.  Llngwood 

188 

Bartlett  v.  Bartlett           149.  162,  €02  b. 

V.  Soame 

17 

680,  826 

Barnes  v.  Addy 

846 

V.  Downes 

352,  355 

V.  Dow 

827  a 

V.  Gage 

602 /f 

V.  Gay 

324 

V.  Gouge 

3:32 

V.  Grant 

112, 

117,  120 

V.  Green 

363 

V.  Kirklnnd 

272 

V.  Janeway 

640 

V.  McChristie 

222 

V.  Johnson 

747 

V.  Pearson 

641 

V.  King                  701 

709 

724,  748 

V.  Robinson 

634 

V.  Nye 

724,  748 

V.  Taylor 

150,  855 

V.  Pickersgill         76, 

126, 

133,  135. 

Barnett  v.  Clarke 

388 

137 

V.  Dougherty 

75 

V.  Remington 

82 

V.  Lichtenstein 

660 

V.  Salmon 

171 

)'.  Spratt 

187 

V.  Southerland 

499 

Barnett's  Appeal 

299, 

305,  311 

Bartley  r.  Bartley 

503,  807 

Barney  v.  Douglas 

438 

Barton  >•   Barton 

614,  516 

V.  Griffin 

590 

i\  Briscoe 

652,  653 

V.  Saunders         453, 

462, 

463,  468, 

i\  Tunnell 

414 

470,  918 

Barton's  Estate   140,  459, 

465, 

467,  918 

Barnhart  ik  Greensliields 

22(5 

Trust 

545 

Barnsley  v.  Powell 

171, 

182,  480 

Bartram  v.  Whichcote 

769 

Barnuni  v.  Baltimore 

43 

Barwell  v.  Barwell 

428,  R69 

Barnuni  v.  Barnum 

383 

V.  Parker 

600 

INDEX   TO    CASES    CITED. 


XXXV 


Section 

Section 

Bar  wick  v.  White 

828 

Bayne  v.  Crowther 

118 

Bascomb  v.  Albertsun 

384, 

724,  738, 

V.  Wylie 

592 

741,  748 

Bawtree  v.  Watson 

188 

Basford  v.  Peirson 

685 

Baxter  v.  Costin 

205,  428 

Baskerville  v.  Baskerville 

359 

V.  Wheeler 

591 

Bass  V.  Scott 

299,  310 

Bazemore  v.  Davis 

836 

V.  Williams 

866 

Beable  v.  Dodd 

652 

Bassett  v.  Fisher 

602  ee 

Beach  v.  Beach            17, 

328, 

330,  353, 

V.  Granger 

284 

520,  672 

V.  Nosworthy 

218,  220 

V.  ]~)yer 

171,  172 

V.  SpofEord 

128 

V.  Fulton  Bank 

600 

Bassil  V.  Lister 

400 

Beaches  v.  Dorwin 

843 

Bastard  ;;.  Proby 

371 

Beadmore  v.  Gregory 

889 

Basy  V.  Magrath 

192 

Beal  V.  Beal 

584 

Bate  V.  Hooper    439,  449 

467 

902,  932 

V.  Burchstead 

72 

Bateman  v.  Bateman 

308 

V.  Harman 

610 

V.  Davis       453,  400, 

467, 

784,  849, 

V.  Symonds 

435 

851 

V.  Warren 

104 

108,  685 

V.  Hotchkin 

396 

Beale  v.  Coon 

330 

V.  Margerison 

885 

Beales  v.  Spencer 

649 

V.  Koss 

672 

Beall  V.  Fox 

724 

Bates  V.  Coe 

586 

Beals  V.  Lee 

189 

V.  Dandy 

633, 

640,  641 

Bean  i\  Simpson 

438 

V.  Heard 

183 

Bear  v.  Bear 

677 

V.  Johnson 

829 

c.  Koenigstein 

126 

;;.  Kelly 

126, 

133,  828 

V.  Whistler 

232 

V.  Mackinley 

544,  545 

Beard  v.  Campbell 

184 

V.  Norcross 

241 

V.  Kimball 

586 

V.  Scales 

419, 

462,  468 

V.  Nutthall 

111,  367 

0.  State 

261a 

V.  Stanton 

865 

V.  Underbill 

418,  458 

V.  Westcott 

379 

Bath  V.  Abney 

325 

Beardsley  v.  Ontario  Bank 

759 

V.  Bradford           600, 

764, 

770,  915 

Beasley  v.  Magrath 

613,  618 

Bath  and  Montague's  Case     189,  509  h 

V.  Wilkinson 

339,  494 

Bathurst  v.  Murray 

636 

Beatson  v.  Beatson 

102,  105 

Baton  V.  Jacks 

509  c 

Beattie  v.  Butler         602  5 

,  602  h,  602  r. 

Batteley  v.  Windle 

158 

602  .c 

Battinger  v.  Budenbecker 

66 

V.  Davis 

591 

Baud  V.  Fardell 

455,  467 

V.  Johnston 

877 

Bauerman  v.  Radenius 

330 

Beatty  v.  Clark 

199, 

475,  490 

Baugh  V.  Price 

187 

V.  Knowler 

44 

V.  Reed 

903  a 

V.  Kurtz 

748 

Baum  V.  Grigsby 

232, 

237,  238 

V.  Marine  Ins.  Co. 

44 

Baumgartner  v.  Guessfield        126,  132 

Bayard  v.  Colefax  602  na,  602  dd 

V.  Farmers',  &c.  Bank        225,  242. 

814 


Bayer  v.  Cockerill 

2.)9 

Bayles  v.  Baxter 

126, 

137 

139,  215 

Bayley,  In  re 

357 

V.  Boulcott 

75, 

77,  86,  97 

V.  Gumming 

273,  502 

V.  Greenleaf 

232, 

233 

234,  239 

V.  Mansett 

277,  287 

V.  Powell 

900 

V.  Williams 

194 

Baylies  v.  Baylies 

329 

V.  Payson 

17,82 

Baylis  v.  Newton 

147,  151 

V.  Staats 

275 

Baynard  v.  WooUcy  418,  848,  884,  931 


Beaubien  v.  Poupard  205 

Heauclerk  r.  Ashburnham  509 

Beaudry  v.  Montreal  869 

Beaufort  v.  Collier  646,  647,  653 

Beauland  r.  Bradley  194 

V.  Halliwell  550 

Beaumont  v.  Boultbee  178,  863 

V.  Bramley  186 

V.  Meredith  827 

v.  Oliveira  704 

V.  Salisbury  317,  319 

Beavan  v.  Oxford  438 

Beaver  ;;.  Filson  730 

Beck  V.  Graybill  126,  133 

Beckett  v.  Cordley  53 

Beckford  v.  Beckford  144 

V.  Close  862 

V.  Kemble  72 


XXXVl 


INDEX   TO   CASES   CITED. 


Section 
Beckford  v.  Wade  228,  855,  863,  865 
liuckley  I'.  Newland  68 

Beckvvitli  v.  Union  Bank  438 

V.  St.  riiilip's  Parish  701,  732, 

735  a 

Beddoes  v.  Pugh  433,  926 

Bedford  v.  Abercorn  375 

V.  Woodman  811 

Bedford's  Appeal  380 

Ciiarity  282,  697,  742 

Bediiian  v.  Seaton  182 

Bedwell  v.  Froome  144 

Beebe  v.  De  Bauin      602/;,  602  del,  782 

Beecli  V.  Keep  98,  100,  101 

V.  Vincent  584 

Beeclier  v.  Major  130,  139 

Beeching  v.  Morphew  654 

Beeknian  v.  Bonsor    259,  384,  402,  748 

V.  People  748 

Beer  r.  Tapp  899 

Beer's  Goods  264 

Beere  i\  Hoffniister  611  a 

Beery  v.  Trick  456 

Beeson  v.  Beeson        195,  205,  207,  209, 

428>  850,  853 

Beevor  v.  Partridge  119 

Begbie  v.  Crook  270,  273 

Belcli  V.  Harvey  855 

Belcher  ?•.  Belcher  191 

V.  Parsons  411,  914 

V.  Saunders  172 

Belchier,  Ex  parte      404,  406,  409,  411, 

416,  421,  441,  443,  779 

Belknap  v.  Belknap  279,  919 

V.  Scaley  186 

Bell  V.  Bell  627,  631,  632,  639,  645, 

828,  863 

V.  Hallenback  149 

V.  Henderson  175 

V.  Hyde  48 

V.  Kellar  660 

V.  Phyn  380 

V.  Scamraon  299 

V.  Webb  205,  229 

Bell's  Estate  918 

Bellamy  v.  Bellamy  428 

V.  Burrow  82 

V.  Sabine  172 

Bellas  V.  McCarthy  211 

Bellasis  v.  Compton    75,  77,  83,  86,  139 

liellington  v.  Shafler  606 

Beilington's  Appeal  458 

Bellow  V.  Russell  202 

Bellows  V.  Partridge  590,  600 

Belmont  v.  Obrien  288,  294,  414 

Belote  V.  White  858 

Beloved  Wilkes  Charity, /?e  511a 

Belt  V.  Ferguson  213 

Beman  v.  R  afford  757 

Bemis  v.  Call  684 

Benbore  i'.  Davies  901 


Section 

Benbow  v.  Townsend 

75,  77,  86,  139 

Bench  v.  Biles 

569,  570 

Bendall  v.  Bendall 

894,  918 

Bender  y.  Reynolds 

649,  651 

Bendyshe,  In  re 

630 

Benett  v.  Wyndham 

744,  914 

Benford  v.  Daniels 

918 

Benger  v.  Drew 

137,  144 

Bengough  v.  Edridge 

379.  390 

Benham  v.  Rowe 

602  r 

Benjamin  v.  Gill 

433 

Benlow  r.  Townsend 

98 

Benn  v.  Dixon 

449 

,  451,  547 

Bennet  v.  Davis 

38,  51, 

121,277, 
322,  324 

Bennett,  Ex  parte 

197 

,  207,  209 

v.  Atkins 

892,  901 

V.  Austin 

245 

V.  Biddle 

636,  899 

V.  Brundage 

602  « 

r.  CoUey      467,  5 

32,  534, 

535,  851, 
863,  867 

V  Denniston 

602  s 

V.  Dillingham 

627 

632,  639 

V.  F'oster 

885 

V.  Fulmer 

77 

V.  Going 

892,  901 

V.  Hayter 

714,  729 

V.  Honeywood 

256 

276,  282 

V.  Hutson 

126 

u.  Judson 

172,  173 

u.  Lowe 

380 

V.  Lytton 

924 

i\  May  hew 

837 

V.  Merriman 

185 

V.  Merritt 

813 

V.  Oliver 

636 

V.  Preston 

843 

V.  Robinson 

514 

V.  Union  Bank 

590,  602  d 

t'.  Vade 

171, 

182,  189 

V.  Whitehead 

871 

Bennington  Iron  Co.  r 

Isham 

757 

Benscotter  i:  Green 

95 

Bensell  r.  Cliancellor 

189 

Benson  v.  Benson 

260,  653 

V.  Bruce 

918 

V.  Hawthorne 

207 

V.  Heatham 

206 

i\  Wiiittam 

117,  119 

Bensusan  v.  Nehemias 

852 

Bent  V.  Priest 

128 

Bentham  v.  Hincourt 

243 

V.  Smith 

254 

V.  Wiltshire 

501,  803 

Bentley  v.  Craven 

427,  430 

r.  Mackay 

82,96 

V.  Phelps 

226 

I'.  Shreve 

468 

Benvoize  v.  Cooper 

338 

Benzien  v.  Lenvir 

217 

INDEX   TO   CASES   CITED. 


XXXVll 


Section 

Berchard  v.  Scott 

731 

IJerdoe  v.  Dawson 

291 

Beresford,  In  re 

635 

V.  Arniagli 

665 

V.  Beresford 

845 

V.  Hobson 

636 

Bergen  v.  Bennett 

602  A 

602  < 

V.  Kendall 

765 

Bergengren  v.  Aldrich  528 

Berger  v.  Duff  402,  770,  779 

Beringer  v.  Beringer  182 

Berkeley  v.  King's  College  69 

V.  Partington  117 

V.  Ryder  512,  517 

V.  Swinburne  118,  620 

Berkhamstead  School,  Ex  parte       742 

Berkmeyer  v.  Kellerman  197 

Bernard  v.  Bongard  132,  133 

V.  MinshuU  112 

Bernstein,  Re  493 

Berrien  v.  Tlioraas  783 

Berry  v.  Briant  117,  118 

V.  Hamilton  511 

V.  Norris  48,  86 

V.  Skinner  602  A 

V.  Usher  244 

V.  Williamson  276,  359 

Berryhill's  Appeal  851,  912,  918 

Berthold  v.  Holmes  602  ^ 

Bertie  u.  Falkland  514 

Berwick  v.  Murray  468 

Beslaiid  v.  Hewett  239 

Bessey  v.  Windham  587 

Best  V.  Blackburn  173 

V.  Campbell  141,  865 

V.  Storr                 ,  17;^ 

Bethea  I'.  McCoU  612,615 

Bethune  v.  Dougherty  259 

V.  Kennedy  451,  547 

Bet  tie  '•.  Wilson  673 

Betts  V.  Betts  678 

Betty  V.  Elliott  357 

Beverley  v.  Brooke  818 

Beverleys  v.  Miller  463  468 

Beverly's  Case  191 

Biiolen  V.  Cleveland  438 

Bibb  i:  Hunter  80,  126 

V.  McKinley  639 

V.  Pope  680 

V.  Smith  97 

Bibby  v-  Thompson  117 

Bick  V.  Matthews  423 

V.  Motley  423 

Bickam  v.  CrutwcU  571 

Bickham  v.  Smith  9i)0 

Bickley  i'.  Guest  765 

Bicknell  v.  Field  72 

V.  Gouch  861 

Biddle  v.  Perkins  506 

Bi. I. lies  ('.  Biddies  117,620 

Bitield  v.  Taylor  673,  874 


Section 

Bigelow  V.  Morang  903  a 

Bigler  v.  Walker  602  t 

Bigley  v.  Jones  127 

Bignold's  Settlement,  In  re  292 

Biibie  v.  Lumley  184 

Bill  V.  Cureton  104,  593 

I'.  Kynaston  541 

Billing  V.  Brogden  440 

V.  Southee  204,  210 

Billingham  v.  Lawthen  108 

Billings  V.  Billings  590 

V.  Clinton  133 

Billingslea  v.  Moore  272 

Billingsley  v.  Cricliett  613 

V.  Matthew  414 

Billington's  Appeal  607 

Bingham  v.  Bingham  184 

V.  Clanmoris  270 

V.  Stewart  158,  814 

V.  Weiderwax  757 

Bingham's  Appeal  511c 

Binion  v.  Stone  54,  145 

Binks  V.  Rokeby        597,  787,  792,  795, 

796 

Binney  v.  Plumly  330 

Binsse  v.  Page  432 

Birch,  In  re  518 

V.  Blagrave  103,  147,  151,  165 

V.  Ellames  217 

V.  Wade  112,  258 

Bird  V.  Bird  456 

V.  Graham  863 

1-.  Hunsden  516 

V.  Johnson  386 

V.  Mayburj'  117 

V.  Pegram  668 

r.  Stride  5116 

Bird's  Estate  918 

Birdsall  v.  Hewlett  575,  903  a 

Biniwell  v.  Cain  195 

Birkett  v.  Hibbert  636 

Birkhamstead  School  Case  725 

Birkhead  v.  Edwards  84 

Birks  V.  Micklethwait  848.  901 

Birley  v.  Birley  511  a 

Birls  V.  Betty  417,  848,  876 

Birmingham  v.  Kirwin  572 

Birmingham  School,  In  re  7j2 

Biron  v.  Mount  593 

Biscoe  V  Kennedy  657 

V.  Perkins  305,  307 

Bishop  1-.  Curtis  327 

V.  Halcomb  438 

v.  Talbot  216 

Bishop  Gore's  Charitv  701,  714 

Bishop  of  Oxford  r.  Leighton  294 

Bittenger  v.  Hailroad  Co.  589 

Bixler  v.  Taylor  260 

Black  V.  Black  79,  137 

V.  Blakely  918 

V.  Creighton  827 


XXXVUl 


INDEX   TO    CASES    CITED. 


Black  V.  Irwin 
V.  Ligon 
V.  McCaulay 
V.  Ray 

Blackburn  r.  Byne 


Section 

402,  779 

528,  529,  538 

o80 

546 

612 


Blackburne,  Ex  parte  276,  504 

V.  Edgeley  201 

V.  Gregson  232,  236,  237,  239 

I'.  Stables              359,  360,  366,  390 

Blackeley  v.  Holton  109 

Hlacket  i\  Langlamls  219 

Blackford  v.  Cliristian  189 

Blackie  v.  Clarke  172,  204 

Blacklev  v.  Fowler  199.  602  v 

Biacklow  V.  Laws  649,  783 

Blackmore  v.  Shelby  200 

Blackshear  v.  Burke  815  b 

Blackstone  r.  Hen  worth  Hospital    694 
Blackstone  Bank  v.  Davis     386,  386  a, 
555,  652 

Blackville  v.  Ascott  511  h 

Blackwood  v.  Burrows  419,  453,  778, 

851 

Blagden,  E.r  parte  626,  632 

Blagge  V.  Miles  511c,  610 

Blagrave  v.  Blagrave  309,  312,  315 

V.  Hancock  376,  383,  390 

V.  Routh  202 

Blair  v.  Bass  137 

V.  Bromley  172,  236,  8(jl 

V.  Nugent  863 

V.  Ormond  869 

V.  Owles  222 

Blaisdell  v.  Locke  99 

v.  Stevens  836 

Blake  r.  Allman  621 

r.  Blake  82,918 

V.  Bunbury  329 

1-.  Foster  856 

V.  Hey  ward  218 

V.  Hungerford  218 

1-.  Sanderson  769 

1:  Trader's  Nat'l  Bk.  229 

Blakeley  v.  Brady  98,  101 

Blakeney  ?•.  Blakeney  117 

Blaker  v.  Cooper  672 

Blanchard,  Re  292 

V.  Moore  226 

V.  Tyler  221 

Blanchet  v.  Foster  213 

Bland  v.  Bland  113,  116,  160 

Rlandford  v.  Thackerell  379,  710 

Blaney  v.  Blaney  566 

Blann  v.  Bell  450,  451 

Blasdell  v.  Locke  98 

Blatch  V.  Wilder  121.  501,  787 

Blatchford  v.  Woolley  658,  84'.) 

Blauvelt  v.  Ackerman  429,  469,  918 

Bledsoe  v.  Games  232 

Bleeker  i:  Binarham  367 

Bleight  1-.  Bank  499 


Section 

Blenkinsop  v.  Blenkinsop  218,  641 

Blennerhasset  v.  Day  228, 229,  230,  782, 

861,  867 

Bleimon's  Estate  748 

Blevins  v.  Buch  573,  677,  862 

Blight  c.  Bank  218,  219,  239 

V.  Ewing  765 

V.  Schenck  404,  409,  591,  779 

Blin  V.  Pierce  58,  330 

Blinkhorne  v.  Feast  54,  153 

Bliss  V.  American  Bible  Society      701, 

724,  747,  748,  892,  903  a 

V.  Bridgewater  260 

V  Matteson  207,  212 
Blithe's  Case  48,  489 
Blithman,  In  re  927 
Blodgett  V.  Hildreth  81,  162 
Blogg  V.  Johnson  468,  472 
Blois  V.  Hereford  636 
Blood  V.  Blood  299 
Bloodgood  V.  Bruen                            785 

1-.  Sears  186 

Bloom  V.  Rensselaer  602  d,  602  x, 

602 /.6 

V.  Waldron  581,  768,  774 

Blooniar,  In  re  56 

Bloomfield  r.  E:yre  245,  871 

V.  Stowe  Market  724 

Blound  V.  Bestland  639 

Blount  V.  Burrow  900 

r.  Carroway  G02  9 

V  Robeson  863 
Blue  V   Marsliall                          482.  528 

V.  Patterson  182,  843,  863 

Blumenthal  v.  Brainard  762 

Blundell,  In  re  702 

Blunder  v.  Barker  201 

Blunt  r.  Blunt  72 

V.  Burrow  87 

Blyholder  i:  Gilson  75,  137 

Board  of  Ed.  v.  Bakewell         700 

Boardman  v  Halliday  586,  590 

v.  Mossman  419 

1".  WiUard  99 

Boaz  V.  Boaz  275 

Boazman  v.  Johnson  585,  596,  597 

Bobb  V.  Bobb  162 

Bochlert  v.  McBride  770 

Boddington  v.  Castelli  345 

Boddv  v.  Dawes  616 

V  Lefevre  244 
Boden  v.  Jaco  602  f 
Bodenham  v.  Hoskins  246,  813,  907 
Bodine  v.  Edwards                      142,  143 

c.  Moore  602W>,  602/f 

Bodley  v   Goodri-li  590 

Bodwell '•    Nutter  :2& 

Boehl  V.  Wadgymar  133 

Boehm  v.  Clark  380 

Bogardus  v.  Trinity  Church  45 

Bogert  V.  Herteli  501,  768 


INDEX   TO   CASES   CITED. 


XXXIX 


Section 

Bogert  V.  Perry 

132 

Boggs  V.  Vanier 

221,  222 

Bogle  V.  Bogle 

276 

,  -im,  900 

Boliannon  v.  Stresp 

ey 

863 

Boliin  L\  Bolun 

209,  226 

Bold  V.  Hutchinson 

359,  361 

BoUes  V.  State  Trust  Co 

13 

Bolni  V.  Headley 

639 

Bolton  I'.  Bolton 

107,  108 

V.  Deane 

871 

V.  Gardner 

428 

V.  Jacks 

498 

V.  Jenks 

765 

V.  Powell 

859 

V.  iStannard 

805 

V.  Williams 

658,  659 

Bomar  c.  MuUins 

836 

Bond,  Ex  parte 

615 

V.  Barksdale     • 

225 

V.  Brown 

228,  229 

V.  Hopkins 

228,  855 

V.  Mc  Watty 

890 

V.  Moore 

160 

V.  Nurse 

17 

V.  Siinmonds 

637 

V.  Turner 

918 

V.  Ziegler 

225,  814 

Bondfield  V.  Hassell 

3{58 

Bondholders  of  York  and  Cumber- 

land R.  R.  Co.,  In 

re 

753 

Bone  V.  Cook 

417,  418 

V  Pollard 

136,  144 

Boney  v.  HoUingsworth 

201 

Bonham  v.  Newcomb 

107 

Bonifant  v.  Greenfield 

270 

273,  499 

Bonitiion  u.  Hockmore 

904 

Bonn  V.  Davant 

918 

Bonner  v.  Bonner 

573 

V.  Holland 

828 

Bonney  v.  Ridgard 

22o. 

228, 

769,  809, 

810 

811 

855,  865 

Bonsall's  Appeal 

458, 

606, 

607,  836, 
812 

Bonser  v.  Kinnear 

112,  258 

Booker  v.  Anderson 

187,  770 

Bool  V.  Mix 

33 

Boon  V.  Barnes 

239 

V.  Murphy 

237 

Boone  v.  Baines 

220 

V.  Chiles       218, 

219, 

222, 

229,  855, 
863 

V.  Citizens'  Savings  Bk. 

82 

Booram  v.  Wells 

490, 

771,  783 

Bootil,  Ex  parte 

402 

V.  Alington 

254 

V.  Ammerman 

47 

V.  Booth       262, 

419, 

454, 

460,  467, 

508 

848,  849 

r.  Clark 

70,  72 

V.  Ficl.l 

315 

V.  McNair 

590 

Section 
Booth  V.  Purser  475 

V.  Sineath  013 

V.  Warrington  hOl 

Bootle  V.  Blundell  566,  768 

Boozer  c.  Teague  133 

Borden  v.  Sumner  5y2 

Boreham  c.  Bignall  476  a,  928 

Borel  V.  Robbins  769 

Bornenian  v.  Sediinger  87 

Borough   of   Hertford   v.  Poor  of 

Hertford  900 

Borst  V.  Corey  234 

Borum  v.  King  98 

Bos  V.  Ewing  237 

Bosanquet  v.  Dash  wood  192 

Boschette  v.  Power  826,  827 

Bosken  v.  Giles  647 

Boskerch  i'.  Herrick  520 

Bosom  V.  Stratham  88,  90,  93,  216 

Boss  V.  Goodsall  460 

Bostick  ('.  Elliott  426 

V.  Wen  ton  254 

Bostlenian  c.  Bostleman  126,  135 

Bostock  V.  Blakeney  475,  477,  552,  913 

V.  Floyer  402,  441,  444,  929 

Bostock's  Case  379 

Boston  V.  Boston  641 

Boston,  &c.  Co.  V.  Boston  761 

Boston  Franklinite  Co.  v.  Condit     499 

Boston  Safe  Deposit  &  Trust 

Co.  V.  Mixter  780,  782 

Bostwick,  Matter  of  615,  617,  618 

V.  Atkins  200,  205 

V.  Estate  of  Dickson  863 

Bosvil  V.  Brander  627,  633,  640 

Boswell  V.  Dillon  359 

V.  Parker  685 

Boteler  v.  Allington      13,  321,  347,  520 
Bothen  v.  McCoU  918 

Bothomly  v.  Fairfax  600 

Botsford  V.  Burr         126,  132.  133,  134, 
1.37,  1.39,  161 
Boughton  V.  Boughton       103,  104,  162 

V.  James  160,  383,  393 

V.  Langley  306 

Bouldin  v.  Alexander  277,  733 

Boultbee  v.  Stubbs  210 

BoMhon,  Ex  parte  438 

V.  Beard  901,  927 

Bourdillon  ;;.  Adair  633 

Bourne  v.  Buckton  397 

V.  Mole  826,  827 

Bourset  v.  Savage  334,  828 

Bousfield  V.  Hodges  780 

Bouve  r.  Cottle  695 

Bovey  v.  Smith   217,  222,  521,  828,  8-30 
Bowden  v.  Bowden  451 

V.  I.aing  117,  118 

Bowditch  r.  Andrew  118,  920 

V.  Bannclos  280,  2S2,  2'.»7 

V.  Soltyk  899,  903  a 


xl 


INDEX   TO    CASES   CITED. 


Section 

Bowen  v.  Evans  218,  230 

V.  Id  ley  183 

V.  McKean  127 

V.  Fenny  437  b 

Bowers  v.  Clark  673 

V.  Heaf  188 

V.  Keesecker  324 

V.  Seeder  404,  412,  415 

V.  Toronto  207,  430 

Bowes,  Ex  parte  336,  337 

V.  East  London  484,  529,  851,  872 

V.  Strathmore  526,  913 

Bowie  V.  Berry  324 

Bowker  v.  Tierce  465,  918 

Bowlby  V.  Thunder  112 

Bowles  V.  Bowles  231 

V.  Drayton  472 

V.  Orr  72 

V.  Stewart  851 

;;.  Weeks  277,  '261 

Bowling  V.  Bowling  032 

V.  Cobb  918 

V.  Win  slow  632,  636 

Bowman  v.  Bates  180 

V.  Wathen  756,  757,  855 

Bowman's  Appeal  607 

Bowra  v.  Wright  54 

Boyce  v.  Corbally  502 

V.  Grundy  171 

V.  Hanning  506 

v.  Stanton  181 

Boycote  v.  Cotton  584 

Boyd  V.  Bovd  415,  420,  426,  861 

V.  Hawkins  195,  917,  91« 

V.  McClure  127 

V.  McLean  126,  137 

Boydell  v.  Golightly  390 

Boyer  o.  Cockerell  298 

V.  Libev  126 

Boykin  v.  Ciples  51,  240,  277,  647 

Boyne  v.  Crowther  119 

Boynton  v.  Brastow  195 

V.  Dyer  468 

?■.  Housler  172 

V.  Hubbard  188 

V.  Hees  218,  222 

V.  Richardson  900 

Boys  V.  Boys  451,  466 

Boyse  v.  Rossborough  189 

Brabrook  v.  Boston  Five  Cts   Sav. 

Bank  98,  99,  100 

Brace  v.  Ormond  903  a 

Bracken  ?'.  Beatty  451 

V.  Miller  218,  222 

Brackenbury  v.  Brackenbury  103, 104, 

165 

Brackenridge  v.  Holland  195,  205 

Braekett  v.  Baum  602  bb 

Bradford  v.  Belfield  294,  344,  408,  494 

V.  Brownjohn  196 

V.  Greenway  655,  660 


Bradford  v.  Harper 

V.  Marvin 

V.  Romney 
Bradish  v.  Gibbs 
Bradley  v.  Chase 

V.  Emerson 
V.  Luce 

V.  Mc  Bride 

V.  Peixoto 

V.  Phil.  R.  R.  Co. 
Bradlin  v.  Hord 
Bradner  v.  Falkner 
Bradshaw  i>.  Bradshaw 

V.  Ellis 

V.  Fane 

V.  Skilbech 

V.  Thompson 
Bradstreet  v.  Butterfield 

V.  Kinsella         • 

Bardwell  r.  Catchpole 

V.  Weeks 
Brady  i".  Dilley 

V.  McKosker 
Bragg  V.  Paulk 
Brainerd  v.  Dunning 
Braman  v.  Oliver 


Section 

39 

237 

186 

48,  367 

185 

654 

133,  843 

230 

386 

602  c 

219,  222 

547 

414,  614 

308,  765 

769 

380 

714 

282 

419  a 

416,  419,  830 

64 

910 

182 

82 

597 

195 


f.  Stiles  121,  386  a,  555,  765 

Bramhall  v.  Ferris  1 18,  386  a,  555 

Bramlet  r.  Bates  380 

Bran  r.  Marlborough  219 

Branch  c.  Griffin  815  c 

Brandenburg  v.  Thorndike       920 


Brander  v.  Brander 
Brandon  v.  Aston 

V.  Brandon 

V.  Hogart 

v.  Robinson 

V.  Woodthorpe 
Brandt  r.  Gelston 
Brandt's  Appeal 
Brannin  v.  Brannin 
Brashear  v  Marcy 

V.  West 
Brasier  i'.  Hudson 
Brassey  v.  Chalmers 
Brasswell  ?'.  Morehead 
Brathwaite  v.  Brathwaite 
Bratt  I'.  Bratt 
Brawley  v.  Catron 
Braxton  v.  State 
Bray,  Ex  parte 

V.  West 
Braybrooke  v.  Inskip 

Brazel  v.  Fair 

Brazer  v.  Clark 
Breck  v.  Cole 
Breckenridge  v.  Brooks 

V.  Ormsby 
Bredin  i-.  Kingland 
Breedon  v.  Breedon 


544,  545 

388,  555,  619 

347 

468 

386,  652 

633 

359 

569 

215 

380 

438,  585,  592,  593 

792 

493,  503,  769 

541 

431 

232 

233,  235 

426 

910 

270,  271 

274,  336,  337, 

597,  801 

127 

417,  420,  426 

212 

918 

35,  189 

918 


582,  610,  793 


INDEX   TO    CASES   CITED. 


xli 


Section 

Breit  v.  Yeaton  828 

Brenan  v.  Boyne  357 

Brendle  v.  German  Ref.  Con.    734,  748 
Brennon's  Estate  710 

Brent  v.  Saiidwicli  734 

Brereton  v.  Brereton  507,  508,  510,  511 


Brest  V.  Offley 

112 

Brett  V.  Cumberland 

536 

V.  Forcer 

635 

V.  Greewell 

636 

Brettell,  Ex  parte 

337 

Brevard  v.  Neely 

602  e 

Brewer  v.  Brewer 

386  a,  555 

V.  Hardy 

299 

V.  Su'irles 

467,  669,  849 

I'.  Vanardsdale 

851 

V.  Winchester 

602  /(,  602  n 

Brewerton's  Case 

6!)3,  701 

Brewster  i".  Angel 

288,  375,  767 

V.  jVIcCall 

748 

V.  Power 

142 

V.  Striker 

305, 

308,  312,  315 

Brice  v.  Brice 

189.  201 

V.  Stokes      416, 

418, 

419,  421,  424, 

466 

467 

508,  589,  849 

Brickell  v.  Earley 

137 

Bride  r.  Smyth 

312 

Bridenbecker  v.  Low 

ell 

127,  135 

Bridi^e  v.  Beadon 

438 

V   Bridge  96,  98. 

101, 

102,  105,  108 

V  Brown       477, 

615, 

618.  910,  913 

Bridger  ;\  Rice 

770 

Bridgers  v.  Howell 

149 

Bridges  v.  Longman 

768 

V.  Pleasants 

701,713,  748 

V   Wilkins 

646 

V.  Wood 

648 

Bridget  v.  Himes 

884 

Bridgman,  In  re 

275,  279,  292 

V.  Gill 

246, 

745,  859,  884 

V.  Green 

71, 

104,  189,  211 

Briers  v.  Hackney 

851 

Briggs  r.  Davis 

334 

V.  French 

72 

V.  Hartley 

700,  702,  718 

V.  Hill 

238 

V.  Light-boats 

40,41 

V.  Oxford 

396,  540 

V.  Palmer 

334 

V.  Penny 

93,  112 

V.  Planters'  Bank 

238 

V.  Terrell 

757 

V.  Titus 

681 

V.  Wilson 

481 

Brigliam  ;;.  Henderson 

72 

Bright  V.  Briglit 

109 

V.  Egerton 

864 

V.  Larcher 

570 

V.  Legerton 

850 

?'.  North 

478,  915 

Brightwell  v.  Jordan 

815  6 

Section 

Brinckerhoff  v.  Lansing  602  ee 

Bringhurst  r.  Cutiibert  311 

Brinkerhoff  v.  Vanschoven  232 

Brinkley  v.  Willis  863,  872 

Brinton's  Estate  900 

Brisbane  v.  Stoughton  602  ^f,  602  W 

Briscoe  v.  Briscoe  361 

V.  Bronaugh  239 

V.  State  919 

Bristed  v.  Williams  242 

Bristol  V.  Hungerford  152 

V.  Whitton  737 

Bristow  V.  Bristow  699 

British  Museum  v.  White  704 

Brittle,  In  re  671 

Brittlebank  v.  Goodwin  863 

Britton  v.  Lewis  199,  414,  768 

V.  Twining  358 

Broad  v.  Bevan  112 

Broadhurst  v.  Balguy  261,  417,  418, 

419,  463,  466,  508,  509,  851 

Broadrup  v.  Woodman  85 

Broadway  Nat'l  Bk.  v.  Adams 

827  a 

Brock  V.  Barnes  202 

V.  Phillips  224 

Brocklebank  v.  Jolinson  118 

Brocksopp  V.  Barnes  904,  906,  910 

Broderick  v.  Broderick  171 

Brodie  v.  Barry  665,  818 

V.  St.  Paul  747,  891,  892 

Brodley's  App  927 

Brogden  v.  Walker  189 

Brome  v.  Berkeley  578 

BromfieM,  Ex  ]>a7-te  605,611 

V.  Wytherley  464 

Bromley  v   Holland  873,  878 

V.  Kelley  460,  461,  467 

V.  Smith  885 

Brompton  v.  Barker  219 

Bronson  v.  Kinsie  602  c,  602  a: 

Brooke  v.  Berrv          172,  187,  189,  206 

W.Brooke'     32,112,116,248,664 

V.  Bulkeley  217,  828 

V.  Turner  511  c 

Brooke's  App.  82 

Brooker  v.  Brooker  890 

Brookman  v.  Hales  157.  196 

Brooks  V.  Brooks  51,  843 

V.  Burt  878 

V.  Dent  127 

('.  Egbert  918  n 

V.  Fowle  133 

V.  Hatch  68 

V.  Jones  312 

V.  Marbury  591,  593 

Brookshank  v.  Smith  857 

Broom  v.  Curry  540 

V.  Summers  734 

Broomfield,  Ex  parte  611 

Bropliy  V.  Bellamy  612 


xlii 


INDEX    TO    CASES    CITED. 


Brophy  v.  Lawler 

Broswell  v.  Downs 
Brothers  v.  Brothers 

V.  Porter 
Brotherton  v.  Hutt 
Broiigh  V.  Higgins 
Brougham  v.  Paulett 
Broughton  v.  Brand 


Section 

171 

348 

602  w 

132,  136,  83ti 

222 

553 

263,  908 

127 


V.  Broughton 

V.  James 

r.  Langley 
Browell  v.  Reid 
Brovvers  c  Fromm 
Brown,  Ex  parte 

In  re 

V.  Alden 

V.  Armistead 

V.  Bamford 

V.  Bartie 

V.  Black 

V   Blount 

V.  Bon  tee 


432,  895,  9U4 

062 

208 

273,  818,  819 

748 

282 

498,  773 

668 

184,  500 

670 

602  i,  602  aa,  602  bb 

246  a 

883 

347 

V.  Brown    77,  83,  93,  277,  287,  315, 
668,  672,  682 


V.  Budd 
V.  Campbell 
V.  Carter 
V.  Casamajor 
-y.  Cave 
V.  Cavendish 
V.  Chambers 
V.  Cheney 
V.  Cherry 
V.  Clark 
V.  Concord 
V.  Cowell 
V.  Cross 
V.  T)e  Tastet 
V.  Dewe}' 
V.  Dy singer 
I'.  East 
i\  Elton 
V.  French 
V.  Gellaty 
V.  Oilman 
V.  Groombridge 
V.  Guthrie 
V.  Heathcote 
V.  Hicks 


28 

465 

201 

117,  612,  620 

133 

98,  104,  593 

51U 

126 

874 

632,  633,  634,  636,  64'.* 

724,  748 

105 

467,  850,  869 

430,  454,  470,  906 

226 

215 

231 


456 
551 
237 
908 
141 
239 
556  a 


V.  Higgs  68, 112, 160,  248,  249,  251, 
256,  257,  258,  272,  507,  508,  714 


V.  Hobson 
V.  How 
V.  Hummell 
V.  Ingham 
V.  Johnson 
V.  Jones 
V.  Kelsey 
r.  Kemper 
»'.  Kennedy 
i;.  Knox 


499,  500 
900 
742 
184 
648 
151,  157.  158 
263,  574,  748 
675 
202 
592 


Section 
Brown  v.  Lake  670 

V.  Lambert's  Adm'ra  846 

V.  Lamphear  186 

V.  Litton  457,  464,  906 

V.  Lockiiart  880,  891,  892,  900 

V.  Lutheran  Church  734 

V.  Lynch  215 

V.  Lyon  592 

V.  Meeting  Street  Baptist  So- 
ciety 737,  743 
I'.  Meigs  254,  498,  511  rt 
V.  Minturn  593 
V.  Oakshott  823 
V.  Paull  118,  612,  620 
V.  Petney  137 
V.  Pocock  250,251,252,258,  652, 671 


V.  Postall 
V.  Pring 
V.  Ramsden 
V.  Ricketts 
V.  Sansome 
V.  Selwyn 
V.  Southhouse 
!'.  Stead 
V.  Stoughton 
V.  Teraperly 
V.  Vanlier 
V.  Whiteway 
V.  Williamson 
V.  Wood 
V.  Wright 
V.  Yeall 
Brown's  Case 
Trusts 
Will,  Re 
Browne  v.  Stamp 
Brownell  v.  Downs 
Browning  v.  Hart 


661 

185 

^05 

429,  464,  468 

468,  472 
244 

464,  472 
347 

160,  393 
616 

232,  239 

309,  312 

386  a 

218 

455,  456,  459,  843 

713,  719 
610 

438,  668 
119 
137 
259 
590 


V.  Head  lev    627,  632,  633,  636,  639 

Bruce  v.  Child  229,  230 

V.  Presbytery,  &c.  698,  709 

V.  Roney  126,  135 

V.  Ruler  179 

Bruch  V.  Lantz  195,  205,  428,  598, 

795,  853 

Brudenell  v.  Boughton  92,  570 

Bruen  v.  Gillet  415 

Bruen  v.  Hone  855 

Bruin  !'.  Knott  613,.  615 

Brumfield  v.  Palmer  238,  239 

Brummell  v.  McPherson  61 

Brumridge  v.  Brumridge  417 

Brune  v.  Martyn  519 

Brunnenmayer  v.  Buhre  732,  742 

Brunsden  v.  Wooldredge   255,  250,  699 

Brunsen  v.  Hunter  112,  115 

Brusii  !'   Kinsley  238 

V.  Ware  224 

Bryan  r.  Bradley  299 

V.  Bryan  627 

V.  Duncan  195,  64 'J 


INDEX   TO    CASES   CITED. 


xliii 


Bryan  v.  Howland 

V.  McNaughton 

V.  Weems 
Bryant  v.  Craige 
V.  Hendricks 
V.  Mansfield 
V.  Russell 
Brydges  v.  Brydges 

V,  Wotton  x^  m 

Bryon  v.  Metropolitan,  &c.  Co, 
Bryson  v.  Nichols 
Buchanan  v.  Deshon 
V.  Hamilton 
V.  Harrison 
V.  Hart 
V.  Matlock 
V.  Monroe 
Buck  V.  Gibson 

V.  Paine 

V.  Pike 
V.  Swasey 
V.  Uhrich 

().  Voreis 

V.  Warren 
Buckels  0.  Carter 
Buckeridge  v.  blasse 


Section 
82 
206 
312 
471 
187,  226 
165 
594,  660,  914 
357,  358,  540 
272 
752 
160 
55 
30,  275,  282,  283 
13,  347 
766 
183 
602 /* 
684 
127 
126,  133,  137 
132,  244 
127 
212 
132 
891 
260,  275,  467, 
835,  849,  851 
141 
910 
34,53 
348 
235,  236 
205 


Section 

„      T,   n  119  251  254,255,559,748 

Bull  V.  Bull  112,  ^&l,  ^o*.          ^g  .^^2 

V.  Vardy  ^^  '        '  (;gy 

Bullin  V.  Dillage  ggg 

Bullock  V.  Knight  gg^ 

V.  Menzies  220 

V.  Sadlier  „  g^g  g22 

V.  Stones  ■  g-^^  ^57 

Bulpin  V.  ^  1%  u  412,  501 

Bumgarner  v.  Loggsweu  ^^^^ 

Bumpus  V.  Plainer  ^^   ..^ 


Buckford  v.  Wade 
Buckham  v.  Smith 
Buckinghamshire  y.  Drury 

r.  Hohart 

Buckland  ..  Pocknell 

Buckles  I'.  Lafterty  ^^O 

Buckley  v.  Buckley  774. 

r.  Howell  190 

r.  Lanauze  g7(^ 

V.  Wells  341 

Bucklin  y.  Bucklin  ggg 

Buckner  ?;•  Calcott  g^ 

V.  Kingsbury  232 

Budd  V.  Basti  275 

V.  Hiler  380 

V.  State  458 

Budge  I'.  Gammon  -^f)5 

Buel  w.  Buckingham  272 

.  Buffington  v.  Maxam 


Bundy  '•.  Bundy 

V.  Monticello 

Bunn  V.  Winthrop       9i 

r-. 

Bunner  v.  Storm 
Bunnett  r.  Foster 
Buntin  v.  French 
Burbank  r.  Whitney 
Burch  V.  Breckenridge 
Burchett  v.  Purdant 
Burden  v.  Burden 

r.  Sheridan 
Burdett  v.  Spilsbury 

V.  Willet 
Burdick  v.  Garrick 

V.  Goddard 
Burdon  v.  Burdon 
V.  Dean 

Buren  i'.  Buren 

Burse  v.  Brutton 
Burger  r.  Duff 

V.  Potter 
Burges  v.  Lamb 
Burgess  v.  Burgess 
v.  Knapp 
Smith 


38 
828 
1  103,  104,  109, 
162,367 
331 
511,  783 
885 
232,  237 
46,  724,  748 
659,  660 
306 
904,  906 
135 
bllb 
835 
468,  471 
282,  503 
665 
632,  633,  635 
127 
432,  910 
402 
237 
776 
272 
763 
72 


540, 


;;Wheate     S^l^vf^?*- ^J^g' 
^^''  *"''        '  f^77   785 


Buford  V.  Caldwell 

,;.  MKee 
Bugden  v-  Tylee 
Bugg  V.  Franklin 
Buggins  I".  Yates 
Bulby,  Ex  parte. 
Bulkley  V.  De  Peyster 

y.  Redmond 
1;.  Staats 


172 

109 
822 

112, 113,  no.  m 

259 

183 

815ft 


,;.  Staats  ,Q   ,g.    182,195 

,,Wilford     ^71,  178,  181,  ^»,y  g^g 

Bull,  In  matter  ot 


Burgoyne  v.  Fox 
Burham  v.  James 

Burke  v.  Adair 

Burke  v.  Chrisman 
V.  Gray 
V.  Jones 

V.  Roper 

V.  Tuite 
V.  Valentine 
Burleigh  v.  Clough 
Burlev  v.  Russell 
Burlingame  r.  Robbms 
Burlington  University 
Burmester  r.  Norns 
Burn  V.  Carvalho 
Burnet  v.  Brundage 
Burnett  v.  Davis 
V.  Denniston 
V.  Kinnaston 


7,  785 
863 
770 
238 
237 
600,  601 
710 
658 
119,  308 
316 
170 
239 
90 
486 
68,  105 
782 
647 
002  7,  602  .r,  602  W, 


xliv 


INDEX   TO    CASES   CITED. 


Burnett  v.  Preston 
Burney  v.  McDonald 

V.  Spear 
Burnhain  v.  Bennett 

I'.  Dalliiig 
Burnly  v.  Evelyn 
Burns  v.  Ford 

V.  Taylor 
Burnside  v.  Wayman 


Section 
17 

•  U 
918 
639 
900 
385 
92y 
285 
95 


Burr  V.  McEwen  5-26,  527,  780,  894,  910 

V.  Siiervvood  040 

V.  Sims  308,  499,  769 

V.  Smith  701,  724,  730,  748 

Burr's  Ex'r  694 

Burrill  v.  Boardman  382,  730,  732,  748 

V.  Shell        411,  413,  417,  420,  460, 

46ij 

Burritt  v.  Silliman  259 

Burroucrh  v.  Philcox  248.  250,  251,  258 


467, 


Burroughs  v.  De  Couts 
Burrows  v.  Alter 

V.  Gore 

V.  Greenwood 

V.  Locke 

V.  Ragland 

V.  Walls 

V.  Williams 
Burson's  Appeal 
Burt  V.  Dennett 

V.  Freeman 

V.  Herron 

V.  Sturt 
Burting  v.  Stonard 
Burton,  Ex  parte 

V.  Cook 

V.  Hastings 

V   Mount 

V.  Pierpont 

V.  Wookey 
Burton's  Appeal 
Burtt  V.  Wilson 
Burtt's  Est..  Re 
Bury  V.  Oppenheim 
Bush  V.  Allen 

V.  Bush         219,  221,  764,  836,  877 

V.  Marshall  232 

V.  Shearman  197 

V.  Stamps  602 /> 

V.  Stanley  126 

Bush's  Appeal  299,  901 
Bushby  v.  Munday  72 
Bushell  r.  Bushell  5116 
Bushnell  i\  Parsons  118 
Bushong  V.  Taylor          437  b,  766 


104 

596 

863 

900 

171 

182 

851 

821 

676 

877 

800 

119 

397,  584 

800,  815 

246,  848 

119 

361 

450,  451 

647 

904 

737 

232 

340,  495 

188,  201 

310 


Bust  V.  Wilson 
Butcher  v.  Johnson 

V.  Mnsgrove 
Bather,  ^.r  parte 
Butler  ('.  Bray 
(•.  Carter 
V.  Dun  comb 


162 

509  fl 

69 

332 

414,  505 

803 

578,  579,  768 


Butler  V.  Godley 
V.  Haskell 
V.  Hildreth 
V.  Ladue 
V.  Merchants'  Ins.  Co. 

V.  Portarlington 

V.  I'rendergast 

V.  Robertson 

I'.  Rutledge 

V.  Van  Wyck 
Butler  &  Baker's  Case 
Buttanshaw  v.  Martin 

Butterhaugh's  App. 

Buttrick  v.  Holdea 

Butts  V.  Wood 

Buxton  V.  Buxton 

Byam  i'.  Byam    294,  364,  503, 

Byant  v.  Pickett 

B^'bee  v.  Thorp 

Byers  v.  Danley 

V.  Wackman 

Byington  v.  Moore 

Byne  v.  Blackburn 
Byrcliall  v.  Bradford 


Byrd  v.  Bradley 
Byrne  r.  Frere 
V.  Norcott 
V.  Van  Hoesen 
Byron  v.  Rayner 


c. 

Cadbury  v.  Duvall 

Cade  V.  Davis 

Cadell  V.  Palmer 
Cadman  v.  Horner 
Cadogan  v.  Essex 

('.  Ewart 

V.  Kennett 
Cadwalader's  App. 
Cafe  V.  Bent        293, 
Caffcy  V.  McMichael 
Caffrey  v.  Darby 
Cage  (.".  Cassidy 
Calioun  V.  Robinson 

Cain  V.  Cox 

Cairns  v.  Chaubert 

V.  Colburn 

V.  Grant 
Calais  Steamboat  Co 
Caldecott  v.  Brown 

V.  Caldecott 
Caldwell  v.  Brown 

V.  Caldwell 

V.  Carrington 

V.  Chapline 

V.  Lovvden 

V.  Williams 


113 
263, 
574 

857 
463, 


Section 
347 

187 

596 

602  iirj 

58,  143, 

146,  147 

82 

873,  878 

680 

133 

591 

270 

520 

554 

814 

207 

439 

505,  807 

918 

618 

139 

137 

206 

117,  612 

462.  469, 

844,  849 

590 

861,  867 

472,  900 

608 

199 


559,  598,  795,  797 

127 

879,  380 

176 

460 

308,  315,  499 

542 

195,  774 

294,  450,  474,  508 

618 

438,  847,  900,  910 

72 

232 

70 

547,  554,  918 

147 

136 

.  V.  Van  Pelt  814 

475,  477,  552,  913 

551 

437  a,  783 

137 

217 

W2dd 

97,  109,  111,  591 


INDEX    TO    CASES    CITED. 


xh 


Calhoun  v.  Burnett 

V.  Calhoun 

V.  Ferguson 

V.  King 
Calkins  i-.  Ishell 

V.  Lock  wood 

V.  Long 
Call  V.  Ewing 

V.  Gibbons 
Callaghun  v.  Hall 
Callahan  v.  Patterson 
Callender  v.  Calgrove 

V.  Ke^'stoiie 
Callis  ('.  Folsoni 
Callow  V.  Howie 
Calloway  v.  Wetherspoon 
Cahnes,  Ex  parte 
Calvert  v.  Eden 

I'.  Godfrey 
Calvin  v.  Currier 

Cal  well's    Ex'r     c. 

Adui'r 
Cambridge  v.  Rous 
Camden  v.  Anderson 

V.  Benson 

V.  Vail 
Cameron  u.  Irwin 

V.  Mason 
Campan  v.  Campan 
Campbell  r.  Baldwin 

V.  Campbell 


Section 

22:3,  843 

655 

546,  547 

818 

60266,602/- 

68 

672 

421 

188 

891,  918 

675 

230 

891 

863 

654,  657,  659 

191 

458 

299 

605 

677 


V.  Carter 

V.  Day 

V.  Dearborn 

V  Drake 
V.  Foster 
V.  French 
V.  Graham 
V.  Hamilton 
V.  Harding 
V.  Hooper 
V.  Home 

V.  Johnston 
V.  Leach 
V.  McLain 
V.  Miller 
V.  Moulton 
V.  Prestons 
V.  Radner 

V  Sheldon 
V.  Walker 
V.  Wallace 
V.  Williams 

Campbell's  Estate 

Trusts,  In  re. 
Canal  Bank  v.  Cox 
Can  by  v.  Lawson 
Candler  v.  Tillett 


Prindle's 

476 

160 

131 

118 

237,  685 

602/,  602  r 

232 

247  a 

232,  237 

126,  129,  228,  441, 

456,  554,  905 

184 

438 

226,  602  6 

128,  135 

386  a 

630 

869 

330 

380 

35 

476  a,  511a,  901,  922, 

928 

195,  205,  786 

530 

209,  851 

456,  914 

210 

32],  329 

741 

93 

128,  195,  197,  770,  869 

93 

468 

109 

51 

591,  592 

mi 

419,  421,  422,  424, 
440 


Section 

Candy  v.  Marcy  186 

Cane  o.  Allen  197,  202 

V.  Roberts  437 

Caney  v.  Bond  438,  440 

Canlield  v.  Bostwick  570,  918 

Cann  v.  Cann  185 

Cannel  v.  Buckle  34 

Canning  r.  Kensworthy  122 

Cannings  v.  Flower  616,  019 

V.  Hicks  13 

Cannon  v.  Handley  171 

Canoy  c.  Troutman  17,  328,  334 

Cantley,  In  re  338 
Cape  V.  Bent       284,  293,  294,  450,  474, 

508 
V.  Cape  118,  647,  649 

Capehart  v.  Huey  »91,  894 

Capel  V.  Wood  533 

Caperton  v.  Calison  891 

Caple  V.  McCollum  126 

Caplin's  Will  510 

Caplinger  v.  Stokes  127,  200 

t'.  Sullivan  633 

Capron  v.  Attieborough  Bank  l'-'9 

Cardigan  v.  Montague  530 

Care  v.  Ormond  821 

Carew  v.  Johnson  9()4 

Carew's  Case  178,  179 

Carey  v.  Brown  815  c 

Carey  v.  Callan  137 

V.  Goodinge  244 

V.  Kemper  815  6 

V.  Rawson  226 

Carieton  v.  Bank  627,  628 

V.  Dorset  213 

Carmichael  v.  Foster  828 

Carmichael  v.  Hughes  615 

V.  Trustees  43 

r.  Wilson  615.  618 

Carne  ;;.  Long  704,  712 

Carnes  v.  Col  burn  162 

V.  Hubbard  239 

V.  Polk  783,  786  a 

Carow  i".  Mo  watt  891 

Carpenter  v.  Am.  Ins.  Co.  171 

V.  Cameron  765 

V.  Canal  Co.  230,  863 

V.  Carpenter  441 

V.  Elliott  192 

V.  Heriot  201 

V.  Leonard  ()80 

V.  Marnell  58,  345 

V.  Miller  748 

V.  Mitchell  686 

Carpenter's  Appeal  900 

Carr,  Ex  jiarle  171 

V.  Atkinson  254 

V.  Bedford  256,  510 

V.  Bob  8C,3 

V.  Burlington  585,  597,  600 

V.  Eastabrook  633 


xlvi 


INDEX   TO    CASES   CITED. 


Section 

Carr  r.  Ellison 

326 

c.  Krroll 

878 

V.  Halliday 

35 

f.  Hilton 

225, 

814,  861 

V.  Hobbs 

232 

V.  Houser 

209 

I'.  Laird 

468 

V.  Living 

117, 118 

V.  Taylor 

(532, 

635,  640 

Carrick  v.  Errington 

160 

Carrier's  Appeal 

918  n 

Carrington  c  Abbott 

559 

V.  Gofldin 

602  aa 

Carroll  c.  Connett 

880 

V.  Farmers'  Bank 

72 

V.  Lee 

647 

V.  Moore 

918 

V.  Renick 

361 

V.  Stewart 

501 

V.  Van  Uenselaer 

232 

Carron  Iron  Co.  v.  Maclaren  72 

Carsey  f.  Bars  haw  41(5 

Carson  i'.  Carson  66,250,  254,  262,  511 

V.  Murray  672,  673 

V.  O'Bannon  644 

Carter  v.  Abshire  774 

V.  Balfour  570,  724,  726,  748 

V.  Bank  of  Georgia  239 

V.  Bennett  863 

V.  Bernadiston  317 

V.  Carter       218,  223,  261,  262,  627, 

628,  633,  672,  673,  676,  829 

V.  Cutting  424,  462,  468 

V.  Home  428,  431 

i\  McManus  204 

V.  Montgomery  357 

V.  RoUa'nd  618 

V.  Taggart  645 

V.  Wolf  748 

Carter  Bros.  r.  Challen   126,  815  c 

Carteret  ;•.  Carteret  351 

Cartledge  v.  Cutliff  471 

Cartmell  v.  Perkins  863 

Cartwriglit  r.  Pettus  72 

V.  Wise  143,  144,  147 

Caruthers  !'.  Williams  133 

Carver  !•.  Bowles  511a 

v.  Ricliards  511  a,  808 

Carvill  v.  CarviU  121 

Carwardine  r.  Carwardine         298,  379 

Cary  v.  Abbott  718,  724,  729 

V.  Cary  112,  116 

V.  Evre  217 

V.  I\iansfield  200 

t;.  Whitney  328 

Casaday  v.  Bosler  602  ee 

Casborn  v.  English  322 

Casborne  v.  Scarfe  324,  336 

Casburne  v.  Casburne  323 

Case  V.  Codding  126,  l:;2 

V.  Gerrish  212,  591 


Case  V.  James 
Casey  v.  Wiggin 
Casey's  Estate 
Cassamajor  v.  Pearson 
Cassard  v.  Hinman 
Cassell,  Ex  parte 

f  Ross 
Cassell's  Appeal 

Cassidy  v.  Hj-nton 

Cassidy  v.  McDaniel 
Castle  V.  Castle 
Cater  v.  Eveleigh 
Cater's  Trust 
Cathorpe,  Ex  parte 
Catlm  V.  Eagle  Bank 
Caton  V.  Caton 

V.  Pembroke 

V.  Rideout 
Cattlin  V.  Brown 
Caulfield  v.  Maguire 

Cavagnaro  v.  Don 

Cave  V.  Cave 

Cavender  v.  Cavender 

Cavendish  v.  Fleming 

V.  Mercer 
Caverly  i'.  Philp 
Cawood  V.  Thompson 
Cecil  V.  Butcher 


Section 

217 

640 

891 

550 

172 

910,  914 

782,  783 

748 

507 

881 

118,  620 

661,  675 

922,  925 

457 

31,  588 

208 

239,  837 

665 

385 

654 

129 

34 

275 

918 

619 

873 

159 


616 


103,  104,  105,  161, 
162,  165 


Cecil  Bank  >•   Snively 
Central  Bridge  v.  Baily 
Chadwick  v.  Heatley 
Chadwin,  Ex  parte 
Chaffees  v.  Risk 
Chaboon  v.  HoUenback 
Chaigneau  r  Bryan 
Chaires  v.  Brady 
Chalfant  v.  Williams 
Challen  v.  Shippam 
Chalmers  r.  Bradley 

287 

V  Hack 
Chamberlain  v.  Agar 

r.  Brackett 

V.  Chamberlain     l81 

V.  Crane 

V.  Dummer 

V.  Stearns 
1'.  Taylor 

V.  Temple 

V.  Thompson 
Chambers,  Er  parte 

V.  Atkins 

V.  Caulfield 

V.  Chambers 

i\  Crabbe 

V.  Gold  win 

V.  Goodwin 

V.  Howell 

V.  Kerns 


126 

754 

922,  925 

574 

589 

330 

260 

187 

226 

462,  463 

228,  230,  274, 

401,  863,  867 

72 

84,  181,216 

728,  737 

,  182,  741,  748 

299 

540 

711 

765 

165 

305,  312,  315,  318 

616,  617,  618 

117 

672 

362,  451 

851 

615 

905 

430 

462 


V.  Manchester,  &c.  Railway       752 


INDEX    TO    CASES    CITED. 


xh 


Section 

Chambers  v.  Mauldin  330 

V.  Minchin  402,  404,  411,  416, 

419,  421,  423 

V.  Perry  631 

i;.  St.  Louis  694,  699,  724 

V.  Taylor  312 

Chainbersburg  Ins.  Co.  v.  Smith      520 

Ciiamness  «.  Crutchfield  226 

Champion  v.  Brown  232,  239 

V.  Kigby  202,  228,  229 

V.  Smith  699 

Champlin  v.  Champlin  672,  783 

V.  Haight  810 

V.  Laytin  171 

Chance  v.  McWharter  232,  239 

Chancellor  v.  Windham  299 

Chandler,  In  re  846 

V.  Hill  600 

Chandos  v.  Brownlow  230 

V.  Talbot  641 

Chanet  v.  Villeponteaux  499 

Clianey  v.  May  885 

V.  Smallwood  245 

Chapin  v.  School  District  45,  730,  744, 

748 

V.  Universalist  Society         17,  299, 

305,  328 

V.  Vermont,  &c.  Railway   758,  761 

V.  Weed  209 

Chaplin,  Ex  parte  461 

V.  Chaplin  151,  165,  323 

V.  Givens       261,  262,  264,  268,  914 

V.  McAfee  126 

V.  Moore  612 

V.  Young  430 

Chapman  r.  Beardsley  232,  235 

V.  Blissett  298,  305,  312 

V.  Butler  855 

V.  Foster  686 

V.  Gibson  108 

V  Gray  672 

V.  Tanner  232,  239 

V.  Wilbur  '  77 

Charity  Corp.  v.  Sutton     402,  879,  904 

Charles  v.  Dubois  428 

Charlton  v.  Durham  421 

V.  Low  218 

V.  Kendall  375 

Charter  v.  Trevelyan  923 

Chase  v.  Cliapin  86,  99 

V.  Chase  70,  71,  112,  117,  118, 

386  a,  623 

V.  Lockcrman      243,  462,  468,  562, 

565,  566,  571,  918 

V.  Palmer  627 

V.  l^arkor  602  f 

V.  Roberts  843 

Cliassaing  v.  Parsonage  6o6 

Cliastain  v.  Smith  127 

Chatham  v.  Audley  905 

V.  Brainard  748 


'  Section 

Chauncy  v.  Graydon  515 

Chauvete  v.  Mason  678 

Chawner's  Will,  In  re  768 

Cheatham  v.  Rowland  477 

Ched worth  v.  Edwards  446,  835,  837, 

863 

Cheek  v.  Watson  171 

Cheever  v.  Wilson  684 

Chelmsford's  Case  694 

Chenery  v.  Davis  440 

Cheney  v.  Watkins  299 

Cheney's  Case  701 

Cherry  v.  Greene  764,  795 

Cherry  v.  Jarratt  918 

V   Mott  724,  726 

Chertsey  Market,  In  re  419,  742,  745, 

770,  816,  848,  849,  875 

Cheshire  v.  Cheshire  544,  836 

I).  Payne  213 

Chesley  c  Chesley  770 

Cheslyn  c   Dalby  202 

Chesson  v.  Chesson  554 

Chester  v  Grier  199 

V.  Pratt  658 

V.  Rolfe  480,  487,  915 

Chesterfield  v.  Janssen  167.  169,  171, 
185,  187,  189,  194,  195,  212,  851 


Chew  V.  Beall 

660 

V.  Chew 

308,  511 

Chew's  Appeal 

827 

Chibnal  v.  Whitton 

993 

Chicago   &   Eastern 

111. 

Rd. 

Co.  V.  Hay 

863 

Chidgey  v.  Harris 

261 

Child  V.  Bruce 

195 

V.  Child 

453,  667 

V.  Gibson 

464 

V.  Stephens 

596,  597 

Childers  v.  Childers        76,  82 

,  84,  131, 

151 

165,  226 

Childs  I'.  Gramold 

1.37 

V.  Jordon 

86,  343 

V.  Wesleyan  Cemetery  Ass.         77 

V.  Woodson 

75 

Chilton  V.  Braiden 

232 

Chion,  Ex  parte 

835 

Chipcliase  v.  Simpson 

649,  651 

Chippendale,  Ex  parte 

486 

907  909 

Chisholm  v.  Chisholm 

615,  616 

V.  Gadsden 

171 

?'.  Newton 

330 

V.  Starke 

541 

Chism  V.  Williams 

880 

Chitwood  V.  Brittain 

84 

Choice  V.  Marshall 

359 

Cholmeley  v.  Paxton 

774,  776 

Cholmondcley  v.  Cholmondelc 

V        112 

V.  Clinton     228,  855, 

856, 

857,  865, 
867 

Chowning  v.  Cox 

602  ,/(l 

Chrichton's  Trust 

927 

VOL.  I. 


:lviii 


INDEX   TO    CASES    CITED. 


Section 

Christ's  Cluirch,  In  re  742 

Clirist's  Coll.,  Cambridgre  700,  7;5y 

Christ's  Hospital  v.  Builgiii  144,149, 151 

V.  Diffenbach  226 

V.  Grainsrer  23,  384,  736 

V.  Ilanies  739 

Christian  v.  Foster  903  a 

V.  Yancey  261,  602  mi 

Christie  v.  Bishop  221 

Christler  c.  JNIeddis  4V)9 

Christopher  v.  Covinston  590,  591 

Christophers  v.  Wiiite  432,  904 

Christy  v.  Courtnay  143,  146,  147 

i\  Fleniington  601 

V.  PuUiain  254 

Church  r.  Church  748 

V.  Cole  126 

V.  Jaques  27 

V.  Marine  Ins.  Co.  206 

V.  Ruland  171,  181,  182,  222 

V.  Sterling  127 

V.  Stewart  328 

V.  Wood  127 

Church   of    Donington-on-Baine, 

In  re  701 

Church  on  Brattle  St.  v.  Grant         736 

Churchill  v.  Churchill  2-54 

V.  Corker  320 

V.  Dibben  664 

V.  Hobson     261,  402,  411,  416,  421 

V.  Marks  388.  555 

City  Council  u.  Paige  218 

City  Nat'l  Bank  v.  Hamilton    127 

Clack  V.  Carlon  432 

r.  Holland  438,  440,  831,  845 

Cladfield  v.  Cox  438 

Claflin  V.  Van  Wagoner  660 

Clagett  V.  Hall  76,  420 

Ciairborne  v   Henderson  324 

Clairhorn  v.  Crockett  238 

Clamer  r.  Rawiings  237 

Clanricarde  v.  Henning      202,  850,  855 

Clapp  !'.  Emery  86 

Clapper  v.  House  227 

Clapton  V.  Bulmer  256 

Clare  v.  Bedford  53 

Clark  V.  Anderson  910 

V.  Burgh  633 

V.  Burnliam  140 

V.  Cant  well  129 

V.  Chamberlain  142 

V.  Clark        126,  132,  147,  417,  418, 

419,  428,  547,  863 

V.  Cook  633 

V.  Cordis  482 

V.  Crego  341 

V.  Everhart  174,  178 

V.  YwWev  590 

I'.  Garfield  453,  459 

1-.  Iliiney  171 

V.  Hilton  152 


Section 

Clark  V.  Holland 

195 

Clark  V.  Hornthal 

511c 

V.  Hunt 

237,  2.30 

V.  Lee 

206 

V.  Maguire 

647 

V.  Makenna 

647,  661 

V.  Malpas 

189,  194 

V.  Martin 

246  a 

V.  Peatridge 

226 

V.  Piatt 

383 

917,  918 

V.  Riddle 

7()6 

V.  Roj' le 

236 

V.  Seymour 

773 

V.  Taylor 

724,  726 

V.  Tennison 

347 

V.  Van  Surley 

610 

V.  Ward 

189 

r.  Washington  Corp. 

757 

V.  Wilson 

594 

(-.  Wright 

828 

Clark's  Appeal 

417,  418 

Clarke,  In  re 

618 

V.  Berkely 

513,  517 

V.  Blount 

421 

V.  Boyce 

235 

V.  Danvers 

126, 144 

V.  Deveaux 

539, 

816,  922 

r.  Hackerthorne 

217 

V.  Hart 

869 

V.  Jenkins 

421 

V.  Lott 

97 

V.  McCreary 

639 

V.  Parker      262,  413, 

502, 

507,  508, 

511,  514 

517 

518,  519 

i\  Quackenboss 

137 

V.  Royal  Panopticon 

19,  768 

V.  Sawyer 

182 

V.  Saxon                    48,  50, 

540,  541 

V.  State 

426 

V.  Turner 

257.  510 

r.  Windham 

648, 

652,  6',3 

Clarkson  /.-.  Clarkson 

545 

V.  Creely 

770 

V.  De  Peyster 

654 

V.  Hanway 

187,  189 

Claussen  v.  La  Franz 

48,  126 

Clavering  v.  Clavering 

103, 

104,  162 

Clay  I'.  Hart 

499 

V.  Sharpe 

60S 

c,  602  bb 

V.  Willis 

602  c 

Clayton  v.  Cagle 

858 

Clayton  v.  Glengall 

580,  584 

V.  Gresham 

544,  545 

Clegg  V.  Edmondson 

141,  lii6 

V.  Fishwick 

196 

V.  Rowland 

528,  530 

Cleland  v.  Cleland 

635 

Clemens  '•.  Caldwell 

275, 

276,  471 

i\  Clemens 

273 

Clemenston  r.  Williams 

866 

Clement  v.  Hyde 

700 

INDEX   TO    CASES    CITED. 


xlix 


Section 

Section 

Clemson  v.  Davidson 

68 

Cocksedge  v.  Cocksedge 

072 

Clenestine's  Appeal 

649 

Coddrington  v.  Foley 

578,  579 

Clennell  v.  Lewtliwaite 

94 

Coder  v.  Haling 

127 

Clerg's  Appeal 

571 

Codwise  v.  Gelston 

594,  596 

Clergy  Society,  In  re 

724 

Coe  V.  Bradley 

215 

Cleric  V.  Miller 

654 

I'.  Columbus,  &c. 

Railway        754, 

Clerkson  v.  Bower 

13 

756,  759 

Clermont  v.  Tasburgh 

71,  176 

V.  Knox  County  Bank 

759 

Cler's  Case 

511c 

V.  Mc Brown 

759 

Cleve's  Case 

161 

V.  Peacock 

754,  759 

Clevelanil  v.  Hallett 

312 

,  315,  320 

V.  Pennock 

759 

V.  Pollard 

915 

Coe's  Trust 

510 

V.  State  Bank 

769 

Coffee  i\  Ruffin 

195 

Click  V.  Click 

126 

Coffin  V.  Cooper 

517 

Clifford  V.  Francis 

719,  729 

V.  Fernyhough 

196 

Clifton  V.  Davis 

191 

V.  Morrill 

642 

V.  Haig 

5-3 

Cofford  V.  Allen 

848 

V.  Lombe 

112 

Cogbill  V.  Boyd 

427 

452 

463,  471 

Clinefetter  v.  Ayers 

562 

Coggesliall  ;;.  Pelton 

697 

704,  748 

Clinton  v.  Seymour 

578 

Coggswell  V.  Griffith 

828 

V.  Willes 

658 

Cogswell  V.  Cogswell 

227, 

462,  468, 

Clippenger  v.  Hipbaugh 

214 

544, 

545 

552 

554,  826 

Clive  V.  Carew 

654 

669 

671,  849 

Cohen  v.  Morris 

602  in 

V.  Clive 

544,  545 

Colt  V.  Fougera 

237 

Clogett  V.  Hill 

826 

Colburn  v.  Morton 

195,  205 

Cloud  V.  Bond 

460 

Colcliester  v.  Lowten 

31 

V.  Ivie 

132 

Colcord  V.  Scamonds 

238 

I'.  Martin 

118,  511 

Coldvvell  I'  Home 

725 

Cloudsley  r.  Pelham 

112 

Cole  V.  Gibbons 

188 

Clough  V.  Bond 

402, 

404, 

409,  417, 

V.  Gibson 

214 

419,  440, 

444, 

453, 

455,  462, 

V.  Jessup 

591 

465,  847 

V.  Littlefield 

112,  117,  386  « 

V.  Dixon 

417 

,422 

444,  445 

V.  McNeill 

213 

V.  Lambert 

672 

V.  Miles 

225 

Cloyne  v.  Yound 

157 

V.  Moffitt 

602  a 

Clulovv's  Trust 

397 

V.  Moore 

828 

Ciute  V.  Bool 

118,  38(3  a 

V.  Noble 

865 

r.  Frasier 

195 

V.  Robins 

191 

Clutton,  Ex  parte 

59 

277,  297 

V.  Savage 

602  ee 

Clyde  V.  Simpson 

794,  800 

V.  Scott 

221,  232 

Coape  V.  Arnold 

358 

359,  369 

V.  Turner 

570 

Coard  v.  Holderness 

157 

V.  Wade           19, 

20, 

258, 

273,  280, 

Coate's  Appeal 

113,  119 

294,  344,  491 ; 

496, 

499,  503, 

Coates  IV  Robinson 

655,  660 

504 

508 

714,  721 

V.  Williams 

591 

Colebrook's  Case 

285 

V.  Woodsworth 

133 

Colegrave  r.  Manby 

532 

534,  535 

Cobb  V.  Biddle 

765 

Coleman  v  Columbia  Oil  Co. 

545,  556 

V.  Kniglit 

86,1 

104,  816  a,  828 

V.  McKinney 

785 

V.  Stewart 

246  ffl 

V.  Ross 

892 

Coburn  v.  Anderson 

158 

w   Woolley 

655,  660 

Cochran  v.  Cochran 

554 

Coles  V.  Forrest 

873 

V.  Paris 

508,511 

r.  Trecothick 

183, 

187, 

188.  195, 

V.  Van  Surley 

610 

199 

206,  428 

Cock  V   Goodfellow 

453,  454 

Colesbury  i\  Dart 

217 

768,  790 

Cockburn  v  Thompson 

815 

Coleson  v.  Blanton 

330 

Cockell  V.  Taylor 

187,  831 

Colgate  V.  Colgate 

205 

Cocker  t;  Quayle 

453, 

460, 

467,  509, 
549,  847 

Collard  v.  Hare 
V.  Samj)son 

228,  865 
511c 

Cockerell  v.  Barber 

272 

College  of  Charleston  v. 

Welling- 

V.  Ciiolmeley 

776,  851 

ton 

919 

Cocking  V.  Pratt 

178 

184,  201 

Collett  V  CoUett 

903  a 

INDEX    TO    CASES    CITED. 


Collier  v.  Carey 
i\  Collier 
r.  Fallon 
V.  Griiiisey 
r.  Ilarkness 

V.  McBean    308,  316.  358,  361,  829 
V.  Slaughter 

I'.  Walter  315 

Collin  i:  Blackburn  616 

Collins  V.  Carey  904 

V.  Carlyle  112,  251 

V.  Collins  16(3,  450 

J'.  Hopkins  602/;,  602  n 

V.  Hoxie  66,  891 

V.  Lavenberg  655,  660 

c.  Hainey  20() 

v.  Rudolph  648 

V.  Serverson  816/) 

V.  Sullivan  181 

V.  Townley  802 

V.  Wakeman  157 

V.  Will  511c 

Collinson  v.  Collinson  146,  147 

V.  Lister        225,  455,  458,  810,  909 

V.  Patrick  98,  102 

CoUinson's  Case  693,  704,  739 

Collis  f.  CoUis  453,  826,  827 

I'.  Robins  558 

Collomore  v.  Tyndall  319 

Collycr  V.  Burnett  741 

I'.  Collins  602  bh 

Colman  v  Lord  897 

V.  Lyne  228 

V.  Sarrel  97,  100,  108,  111,  367 

V.  Satterfield  678,  681 

Colmer  v.  Colmer  628,  634 

Colrane  v.  Worrel  456 

Colsten  V.  Chandos  493 

Colt  i\  Lasoriere  225 

Colton  V.  Colton  112 

Columbia  Bridfje  Co.  v.  Kline  42 

Colvin  V.  Currier  645 

V.  Mennefee  8G6 

Colyer  r.  Finch  800,  802,  803 

Com.  V.  Nase  160 

Combe  v.  Brasier  733,  748 

V.  Combe  580 

r.  Hughes  397 

Combry  v.  McMichael  312,  318 

Commeyer  v.  United  Ger.  Church     55 

Commissioner    of    Roads    v.    Mc- 

Pherson  43 

Commissioners  v.  Archibald  275 

Com'rs,  &c.  v.  Archbold  275,  276 

V.  De  Clifford  380,  736 

V  Forney  500 
V.  Johnson  452,  890  a 

V.  Mateer  270 

V.  Sullivan  699,  729 

V  Walker  30.  39 
V.  Wy  brants  802,  831 


Section 

Section 

432 

C 

jmmonwealth  v. 

Duffield 

611c 

226,  620 

V.  Martin 

64 

69 

V-  McAlister 

418 

499 

V.  Shelby 

564 

230 

V.  Smith 

756,  757 

361,  829 

V.  Stauffer 

514,  555 

514 

V.  Tenth  Mass.  Turnp. 

757 

Company  of  Pewterers  v.  Christ's 

Hospital  736 

Compton  V.  Barnes  918 

V.  Collinson  48,  -52,  672,  673 

V.  Oxenden  347,  348 

Condict  V.  Flower  585 

Condy  (■.  Adrian  541 

i.  Campbell  380 

Cong.  Church  v.  Southwick  411,  413 

Conke}'  v.  Dickinson  263,  572 

Conklin  v.  Conklin  380 

V  Egerton  500 

Connah  i-.  Sedgwick  590,  591 

Connecticut  v.  Bradish  218 

Conningham  v.  Conningham  261,  262, 

268 
V.  Melhsh  151,  153,  158 

V.  Plunkett  100 

Connolly  v.  Connolly  515 

V.  Farrell  117,  118 

V.  Howe  236 

V.  Pardon  891 

V.  Parsons  770,  782 

Connor,  In  re  66 

V.  Follansbee  137 

V.  Lewis  133 

V.  New  Albany  328 

V.  Ogle  396,  612 

Conover  u  Beckett  815  c 

Conover  v.  Stothoff  795 

Conover  v.  Warren  233,  237 

Conoy  V.  Troutman  602  aa 

Conrad  v.  Shomo  684 

Conroe  v.  Birdsall  170 

Conron  v.  Conron  573 

Conry  v.  Caulfield  433,  863,  876 

Consistory  v.  Brandon  748 

Constant  v.  Metteson  918 

V.  Schuyler  87 

Constantein  v.  Bleache  585 

Consterdine  v.  Consterdine  417 

Contee  v  Dawson       417,  420,  466,  826 

Conway,  Ex  parte  588 

V.  Alexander  226 

V.  Conway  678 

V.  Cutting  82,  438 

V.  Green  205 

I'.  Kensworthy  82,  231 

V.  Smith  680 

Conybeare's  Settlement,  Ex  parte  277, 

297 

Good  V.  Cood  71 

V.  Pollard  236 

Cook  V.  Addison  447.  468 


INDEX   TO    CASES   CITED. 


Section 

Section 

Cook  V.  Arnliam 

862, 

872 

Cooper  V.  Wyatt 

388,  555 

V.  Barr 

81 

Cooth  V.  Jackson 

137 

V.  Bremond 

147 

Cope  V.  Barry 

873 

V.  Bronaugh 

133 

221 

V.  Clark 

849 

V.  Burtchaell 

206 

V.  Cope 

564 

V.  Cliolmondeley 

427 

Copeland  v.  Ins.  Co. 

206 

V.  Clay  worth 

191 

Copeley  v.  O'Neil 

606 

V.  CoUinridge 

454 

470 

Copeman  v.  Gallant 

58 

V.  Cook 

215, 

499 

Copis  V.  Middleton 

197 

V.  Crawford  273,  284 

290, 

294, 

339, 

Coppage  V.  Barnett 

133 

340,  344,  492, 

494 

495 

502 

Coppard  v.  Allen 

876 

V.  Dawson 

566 

802 

80:i 

Copper  Mining  Co.  v.  Beach 

786 

V.  Dealy 

150 

Copperthwaite  v.  Tuite 

654 

V.  Dillon 

601 

.  I,  602  //• 

Coppin  V.  Coppin 

236 

V.  Dunkenfield 

156, 

699, 

729 

V.  Fernyhough 

533,  834 

V.  Ellington 

112 

v.  Gray 

657 

V.  Fountain           104, 

121, 

162, 

167 

Copping  V.  Cooke 

243 

V.  Fryer 

2«0 

Corbally  v.  Grainger 

665 

V.  Gardiner 

920, 

921 

Corbett  v.  Barker 

856 

V.  Gwavas 

152 

V.  Laurens 

552 

V.  Husbands 

50 

V.  Maydwell 

578,  579 

V.  Hutchinson       150, 

151 

153, 

loH 

Corbin  v.  Wilson 

615,  616 

V.  Ingoldsby 

290 

Corby  v.  Corby 

121 

V.  Kennedy 

647 

Cordell's  Case 

217 

V.  Laniotte            104, 

194, 

201, 

210 

Corder  v.  Morgan                  602  c,  602  bh 

V.  Lawrence 

292 

Cord  well  v.  Mackrlll 

833,  834 

V.  Lowry 

23 

Corgell  V.  Dunton 

667 

v.  Nathan 

184 

Corie  r.  Bertie 

694 

v.  Parsons 

476, 

915 

Corkers  v.  Minons 

516 

V.  Sherman 

133, 

195 

Corley  v.  Corley 

627,  629 

V.  Soltan 

219, 

352 

V.  Stafford 

202,  203 

i\  Stationers'  Co. 

152, 

160 

Corlies  v.  Corlies 

276,  459 

V.  Trimble 

232 

(-ormerais  v.  Genella 

602  qq 

V.  TuUis 

336, 

831 

Cormick  v.  Holbrook 

680 

I'.  Wiggins 

6>2, 

674 

Corn  Exchange  v.  Babcock 

660 

Cooke,  Re 

498 

Cornell,  In  re 

845 

Cooke  I'.  Piatt 

Ilia 

Cornell  v.  Green 

600 

Cookson  V.  Reay 

461 

V.  Lovett 

514 

V.  Richardson 

127, 

187 

Cornfoot  v.  Fowke 

172 

Cool  V.  Jack  man 

468 

Corning  v.  Lewis 

680 

Cooley  V.  Rankin 

191 

V.  White 

594 

V.  Scarlett 

71 

Cornish  v.  Wilson 

558,  570 

Coombs  V.  Jordan 

598, 

797, 

798 

Cornwise  v.  Bourgum 

466,  618 

V.  Read 

676 

Corp.  of  Carlisle  v.  Wilson 

871 

Coon  V.  Brook 

660 

Corp.  of  Reading  v.  Lane 

699 

Coonrod  v.  Coonrod 

475, 

794 

Corp.  of  Sons  of  Clergy  v.  Mose      743 

Coope  V.  Carter 

889, 

890 

Corrie  v.  Byron 

286 

Cooper  V.  Cartwright 

347 

Corse  V.  Leggett 

81,82 

V.  Cockrum 

126, 

171 

Corser  v.  Craig 

438 

V.  Cooper             254, 

347, 

516, 

890 

Cory  V.  Cory                        185 

191,  201 

V.  Day 

275, 

282 

V.  Gertcken 

53,  624 

V.  Douglas 

480 

Coryell  v.  Dunton 

511  c,  654 

V.  Kynock 

317, 

319, 

320 

Coryton  v.  Hilyan 

7 

V.  Martin 

254 

Cosser  r.  Radford 

600 

V.  McClum 

257 

Costabadie  v.  Costabadie 

117,  511 

V.  Reilly 

369 

Costeker  v.  Horrox 

827 

V.  Skeele 

137 

Coster  V.  Coster 

636 

V.  Spottiswood 

236 

V.  Griswold 

72,  187 

V.  Stevens 

602  pe 

V.  Murray 

863 

V.  Thornton 

117, 

118, 

624 

Cotham  i'.  West 

615 

i;.  Whitney 

322, 

585 

Cottam  V.  E.  Counties  R.  R.  Co 

.416,418 

lii 


INDEX   TO    CASES   CITED. 


Section 

Section 

Cotteen  v.  Missing 

97,  1U2 

Cox  V.  Halstead 

602  r,  602  u 

Cotter  I'.  Burcliiird 

843 

V.  John 

197 

Cotterel  v.  Hampson 

30 

V.  Parker 

160,  434 

V.  Purchase 

226,  8(il 

V.  Sprigg 

98,  109 

Cottereli  c.  Long 

\j02d 

V.  Walker                17, 

328, 

411,  520 

Cottingliam  v.  Shrewsbury 

876 

V.  Wood 

232 

Cottington  v.  Fletcher 

82 

,  84,  137, 

Coykendall  v.  Rutherfort 

499 

151 

,152, 

165,  216 

Cozine  v.  Graham 

84 

Cottle  V.  Harrold 

126 

Crabb  v.  Crabb 

7 

5,  77,  147 

Cottnian  v.  Grace 

700,  732 

Crabb  v.  Young 

401 

Cotton  V.  Clark 

898 

900,  902 

Crackett ;;.  Bethune 

466, 

468,  900 

V.  Cotton 

450,  547 

Cradock  v.  Owen 

327,  437 

r.  King 

103 

(.-.  Piper 

432,  895 

V.  Penrose 

903  a 

Crafton  v.  Frith 

699 

V.  Wood 

134,  137 

Craig  V.  Craig     274,  280, 

281, 

393,  396, 

Cottrell  i:  Cottrell 

787 

398,  766 

V.  Huglies 

218,  354 

V.  Hone 

277,  381 

Cough  V.  Bond 

914 

V.  Leslie 

64 

Cuulson  V.  Walton 

855 

V.  Radford 

55 

County  Att'y  v.  May 

724 

V.  Wlieeler 

450,  451 

Course  v  Humphrey 

888 

Craigdallie  r.  Aikman 

734 

Court  r.  Jeffrey 

812,  881 

Craigg  c.  Holmes 

191 

V.  Robarts 

472 

Crallan  r.  Ougiiton 

601 

Courtenay  v.  Courtenay 

268 

280.  401 

Cram  v.  Mitchell         195 

206 

586,  590 

V.  Taylor 

260 

Cranch  v.  Cranch 

449 

Cousett  i:  Bell 

877,  907 

Crane  v.  Caldwell 

238 

Coutts  V.  Acworth 

104 

V.  Conklin 

187,  191 

Covar  c.  Cantelou 

874 

V.  Crane 

17,  328 

{^ovenhoven  v.  Shuler 

541 

546,  547 

V.  Drake 

225 

810,  815 

Coventry  v.  Coventry 

52, 

108,  268, 

V.  Go  ugh 

110 

276,  280, 

2b2, 

884.  899, 

V.  Hearn 

419 

901 

908,  924 

V.  Inglehart 

459 

V.  Hall 

872 

V.  Kelley 

680 

V.  Higgs 

513,  517 

V.  Palmer 

239 

Coverdale  v.  Eastwood 

208 

V.  Reeder 

780 

Covington  v.  Anderson 

828 

V.  Ruder 

327 

Covington  v.  McEntire 

546 

Cranston  v.  Crane        602  w,  602  x,  779 

Cowdery  v.  Way 

654 

V.  Plumb 

674 

Cowdry  v.  Day 

203 

Cranstown  v.  Johnston 

71,  72 

Cowell  V.  Gatcombe 

402,  417 

Crawford  r.  Bertholf 

38,  231 

Cowgill  V.  Oxmantown 

539,  777 

V.  North  Eastern  Rai 

way 

545,  656 

Cowing  V.  Howard 

918 

r.  Patterson 

612 

Cowles  V.  Brown 

511 

Crawford's  Appeal 

96 

Cowley  ''.  Hartstonge 

461,  511 

Crawley  v.  Crawley 

397, 

449,  551 

V   Wellesley 

546 

V.  Dixon 

551 

Cowman  v.  Colquhoun 

820  a 

Crawshaw  v.  Collins 

1 

906 

Cowman  v.  Hall 

322 

Crawshay  v.  Collins 

430 

454,  470 

V.  Harrison 

113,  117 

Creagh  r.  Blood 

13 

269,  347 

Cowper  V.  Cowper 

183,  357 

i\  Wilson 

514,  615 

V.  Mantell 

119,  256 

Creaton  v.  Creaton 

305, 

308,  315 

Cowperthwaite  v.  Bank 

181 

Credlant's  Estate 

310  n 

Cowstad  V.  Cely 

878 

Creed  v.  Creed 

876 

Cox  V.  Arnsraan 

171 

V.  Lancaster  Bank 

126, 

130,  139, 

Cox  V.  Bassett 

714 

149 

V.  Bateman 

137 

260,  837 

Creigh  v.  Henson 

863,  866 

V.  Chamberlain 

785 

Creighton  i:  Ringle 

225,  456 

I'.  Coleman 

6t58 

Creney  v.  Dupree 

75 

V.  Cox 

556  a 

794,  799 

Cresop  I'.  McLean 

602  (id 

V.  Dolman 

863 

Cressman's  Appeal 

82 

101,  109 

V.  Edwards 

299 

Cresson  v.  Ferree 

498 

506,  788 

V.  Fenwick 

232,  237 

Cresson's  Appeal 

704 

INDEX   TO    CASES   CITED. 


liii 


Section 

I 

Section 

Cress  well's  Adm'r  i 

.  Jones         «2 

Crowtber  v.  Crowther 

858,  871 

(Jreswell  v.  Uevvell 

849,  851,  026 

Croxall  V.  Sliererd 

6,  301,  321 

Creuze  v.  Hunter 

600 

Croxton,  Ex  parte 

891 

Creveling  v.  Fritts 

195 

Crozier  v.  Crozier 

371 

Crewe  v.  Dicken         271 

273,408,411, 

V.  Young 

149 

497 

,  502,  503,  806 

Cruce  V.  Cruce 

471 

Cribbins  v.  Barkwood 

188 

Cruger  v.  Cruger 

660,  667 

Crichton  v.  Grierson 

712 

V.  Halliday  268,  274,  280,  285,  401, 

Cripps  ('.  Jee 

82,  151 

901 

Crisfield  ».  State 

863 

V.  Heywood 

612 

Crisp  V.  Spranger 

246,  403 

V.  Jones 

334 

Crispell  v.  Dubois 

201,  204,  210 

Cruiksbanks  v.  Roberts 

72 

Crissman  v.  Crissman 

86 

Cruise  v.  Christopher 

189 

Critchfield  v.  Ilaynes 

602  y 

Cruiston  v.  Olcott 

452 

Critton  v.  Fairchild 

334 

Crump,  In  re 

654 

Crocheron  v.  Jaques 

38 

V.  Baker 

913 

Crocker  v.  Dillon 

849 

V.  Gerack 

468 

Crocker  v.  Lowentlial 

261 

Cruse  V.  Barley 

152,  160,  499 

V.  Robertson 

602  d,  602  7 

V.  McKee 

251,  254,  255 

Crockett  v.  Crockett 

112,  117,  118, 

Cruselle  v.  Chastain 

437  6 

386  a,  620 

Crutc:ber  v.  Hord 

215 

V.  McGuire 

241 

Crutchfield,  Ex  paHe 

b06 

Croft  V.  Adam 

249,  251 

Cruwys  v.  Colman      112 

,  248,  256,  285 

V.  Artbur 

149 

Cryder's  Appeal 

795,  798 

V.  Latbrop 

72 

Cuddy  V.  Waldron 

886 

V.  Powell 

602  c 

Cueman  v.  Broadnax 

301 

V.  Slee 

152,  655 

Cuff  V.  Hall 

490,  771 

Crofton  V.  Davies 

360 

Culpepper  c.  Aston   152, 

597,  764,  770, 

V.  Ornisbj' 

217,  828 

7»5 

789,  795,  796 

Crofts  ('.  Evett 

718 

Culver  V.  Culver 

205 

V.  Middleton 

184,  657 

Cumberland  v.  Codrington          98,  562 

Croker  v.  Hertford 

93 

Cumberland  Coal  Co.  v. 

Hoffman 

Cromie  v.  Bull 

510 

Coal  Co 

206 

Crommelin  v.  Crommelin  513,  514,  517 

Cumberland  Coal  Co.  v. 

Sherman   207 

Cronipton  v.  Vaser 

97 

Cumick  V.  Tucker 

113 

Cronnin  v.  Louisville,  &c. 

Soc.  715, 748 

Cuming  v.  Robins 

137 

Crook  V.  Brooking 

82,86 

Cummings  v.  Boswell 

544,  545 

V.  De  Vandes 

380 

V.  Cummings 

127 

V.  Glen 

858 

V.  Fullam 

438 

V.  Ingoldsby 

259 

V.  Miller 

680 

V.  Turpin              626, 

628,  630,  632 

V.  Sharp 

662 

Crooke  v.  Kings  County              2'i  | 

V.  Williamson 

660,  768 

Crop  V.  Norton             126, 

132,  133,  196 

Cummins  v.  Bromfield 

888 

Cropster  v.  Griffith 

52 

V.  Cummins  260,  261, 

262. 264,  429, 

Crosby  v.  Church 

658,  669 

454 

V.  Hillyer 

593,  596 

Cunliffe  V.  Cunliffe 

112 

V.  Huston                284,  602  (/,  602  p  j 

Cunningham  v.  Antrobus 

633 

V.  Mann 

928 

V.  Freeborn 

585,  593 

V.  Mason 

476  a 

I'.  Gray 

577 

Croskill  r.  Bower 

195,  432,  461 

V.  JMcKinley 

863,  864,  865 

Cross  y.  Beavan 

617 

V.  Moody 

323 

V.  Cross 

380 

V  Pell 

876,  879,  881 

V.  Kennington 

570 

V.  Schley 

539 

V.  Norton 

82 

Cureton  v.  Watson 

456 

V.  Petree 

438 

Curling  v.  Curling 

724,  728 

V.  Smith 

407 

r.  Shuttleworth 

602  c,  602  p 

Cross's  Estate,  Re 

150 

Curnick  v.  Tucker 

113 

Crossling  v.  Crossling 

252,  507 

Currant  v.  Jago 

144 

Croton,  &c.  Co.  ik  Ryder 

761 

Currer  r.  Walkley 

795 

Crowe  V.  Ballard 

192,  206 

Curric  r.  Hart 

690 

V.  Crisford 

451 

V.  Pye 

747 

liv 


INDEX    TO    CASES    CITED. 


Section 

Currie  v.  Steele 

185 

V.  White 

82, 

122,  2:J1 

Curry  c.  Allen 

8G1 

c.  Hill 

764 

V.  iShrader 

675 

Curteis  v.  Candler 

280,  476  a,  894, 

899, 

922,  928 

Curtis  V.  Brown 

728 

V.  Buckingham 

60-2  <-e 

t'.  Curtis 

871 

r.  Daniel 

801 

V.  Engel 

6tiU 

I'.  Full  brook 

501 

V.  Mutton 

709,  741 

r.  Lanier 

218 

V.  Leavitt 

591^ 

V.  Luken  160, 381, 385, 393, 532,  535 

V.  Mason  417,  419 

V.  Perry  165 

V.  Price  305,  319 

V.  Ripon  112,  113,  116 

V.  Smith  71,  275,  2S0,  615,  843 

Curton  V.  Jellicoe  797 

Cusack  V.  Cusack  361 

V.  White  214 

Cushing  V.  Blake         324,  357,  358,  359 

l:  Danfortii  206 

Cushney  v.  Henry  38,  240 

Custaiice  v.  Cunningham  151 

Cuthbert  v.  Baker  793 

V.  Rolf  648 

Cutler  I'.  Griswold  149 

V.  Tuttle       126,  131,  132,  133,  137, 

149,  165 

Cutler's  Trusts  633.  636 

Cuyler  v.  Bradt  82,  136,  865 


D. 

Dabney  v.  Manning 
Da  Costa  v.  Da  Pas 


702, 


Dagley  i'.  Tolferry 
D'Aguilar  v.  Drinkwater  511, 
Dakin  v.  Beresford 

V.  Demniing 
Daland  v.  Williams 
Dale  V.  Hamilton 
Daley  v.  Desbouvierie  512,517 
Dalheguey  v.  Tabor 
Dallam  v.  Filler 

V.  Wampole 
D'Almaine  v.  Anderson 
Dalryniple  v.  Taneyhill 
Dalston  v.  Coatsworth 

Dalton  V.  Dalton 

Dalton  )-'.  Hewen 

V.  Young 
Dalton's  Settlement 
Daly  V.  Beckett 


308 

715,  718, 

724,  729 

624 

517,  518 

649 

918 

545 

82 

,  518,  519 

246  a 

591 

667,  679 

286 

610 

183 

828 

795 

802 

612 

530 


Section 
Dalzell  V.  Crawford    598,  794,  795,  7y6, 

798 
Dame  v.  Annas  784 

Damon  v.  Bibber  602  a 

Damon's  Case  739 

Dan  V.  McKnight  218 

Dana  v.  Bank  of  United  States         31, 

588,  590,  592 

r.  Davenport  6U2  aa 

V.  Farrington       602  q,  602  r,  602 1, 

602  u,  602  X 

V.  Lull  591 

V.  Newhall  218 

V.  Petersham  231 

Dance  v.  Goldingham  786 

Dandridge  v.  Minge  562 

Daniel  v.  Daniel  330 

V.  Davidson  217,  828 

r.  HoUingshead  218 

V.  Newton  623 

V.  Robinson  660 

V.  Uhley  50 

V.  Warren  451 

Daniels  i-.  Eldridge  386,  555 

Danser  y.  Warwick  86 

Darby  v.  Calligan  686 

D'Arcy  v.  Blake  323,  871 

V.  Croft  487.  619 

V.  Hall  428,  431 

Dare  v.  Allen  639 

Dargan  v.  Richardson  589,  593 

Darke  v.  Martyn  443,  453 

V.  Williamson  476,  907 

Darkin  v.  Darkin  127 

Darley  r.  Darley        107,  310,  612,  647, 

648,  651 

Darling  v.  Hammer  469 

Darlington,  Ex  parte  615 

V.  IMcCooke  97 

D'Arny  v.  Chesneau  345 

Darrah  v.  McNair  94,  327,  436 

Dartmouth  College  v.  Woodward     30, 

44,  737,  742 

Darwell  v.  Darwell  421 

Darwin  v.  Hanley  591 

Dashell  v.  Earle  639 

Dashiel  v.  Att'y-Gen.  160,  724,  748 

Dash  wood  v.  Bulkeley      51 1,  512,  515, 

517,  518,  519 

Daubigny  v.  Duval  243 

Daubrey  v.  Cockburn  511  a 

Daughady  v.  Payne  232,  237 

Davall  V.  New  River  Co.  434 

Davant  v.  Guerard  330 

Davenport  v.  Coltman  160 

V.  Davenport  680 

V.  Farrar  324 

V.  Prewett  633 

V.  Stafford  440 

Davev  v.  Durant  768,  780 

David  V.  Froud  924 


INDEX    TO    CASES    CITED. 


Iv 


Section 

Davidson  v.  Foley  152 

V.  Gardner  654 

V.  Little  187,  188 

V.  Moore  275 

Davidson's  Ex'r  v.  Kemper    815  a 

Davie  v.  Beardsliam  38,  231 


Davies  v.  Bush 

784 

V.  Davies 

160,  301, 

618,  834 

V.  Hodgson 

53,671 

V.  Lee 

540 

V.  Speed 

379 

V.  Tliornycroft 

646, 

652,  fi71 

V.  Topp 

5H3 

V.  Westcombe 

776 

Davis,  Ex  parte 

286 

V.  Austin 

618,  624 

I'.  Barrett 

431 

• — —V.  Bessehl 

890  n 

V.  Browne 

816 

V.  Cain 

647,  648 

V.  Charles  River  R.  Co. 

17,  328 

V.  Coburn 

86,  864 

V.  Cotton 

865 

V.  Davis 

127, 

639,  891 

V.  Dendy 

912 

V.  Gardner 

569 

V.  Hamlin 

206 

V.  Harkness 

618 

V.  Harnian 

441,  456 

V.  Hayden 

302 

V.  Hodgson 

849 

V.  Howcote 

783 

V.  Johannot 

610 

V.  Lamb 

232 

V.  Marlborough 

69,  188 

V.  McNally 

192 

V.  McNeil 

411 

V.  Newton 

627, 

629,  632 

V.  Otty 

84,  226 

V   Prout 

648 

V.  Rhodes 

521 

V.  Roberts 

618 

V.  Simpson 

195 

V.  Spurling  246 

402,  403 

404,  417 

V.  Tingle 

170,  849 

V.  Vincent 

511c 

V.  Wetherell 

133 

V.  Williams 

312 

Davis,  Petitioner 

610 

Davis's  App. 

786  n 

Estate 

590 

Davoue  v.  Fanning 

195,  197, 

205,  294, 

428 

,  499,  501 

Davy  V.  Hooper 

250 

251,  255 

V.  Seys 

892 

Dawes  v.  Betts 

787 

Section 

Dawson  v.  Lawes 

210 

V.  Massey 

200,  468 

V.  Parrot 

901 

V.  Small 

706 

Day  i\  Arundel 

219 

V.  Croft 

818 

V.  Day 

891,894 

V.  Roth 

86, 

126 

127,  135 

V.  Thwaites 

5116 

Dawson  v.  Clarke  152, 157, 158, 160,  910 

V.  Dawson  38,  93,  97,  98,  104, 

240,  280 

V.  Hearne  119 

V.  Jay  603 


Deaderick  y.  CantreU  404,416,418. 
420,  421,  466 

V.  Watkins  187 

Dean  v.  Adler  104 

V.  Dean  75,  76,  84,  85,  126,  232,  855 

V.  Home  for  Aged  Women  903  a 
V.  Long  520 

V.  Mitchell  322 

V.  Sandford  277 

Deans  v.  Scriba  918 

Dearin  v.  Fitzpatrick  627,  629 

Dearie  v.  Hall  438 

Deatly  v.  Murphy  189 

De  Barante  v.  Gott  38 

Debenham  v.  Ox  214 

De  Bevoise  v.  Sandford  128,  195,  921 
De  Biel  v.  Tiiompson  208 

De  Bouchout  v.  Goldsmid  243 

De  Caters  v.  Chaumont  195,  593 

De  Cells  v.  Porter  195 

Decouche  v.  Lavetier  228 

Dedham  Bank  v.  Richards  593 

Deen  v.  Cozzens  275,  619,  620 

Deerhurst  v.  St.  Albans    339,  360,  373, 

390 
Deering  v.  Adams       262,  308,  312,  315 

V.  Tucker  920 

Deffenderffer  v.  Winder  ^63 

De  Forrest  v.  Bacon  593 

Deg  V.  Deg  82,  137,  511  c,  837 

De  Garcin  v.  Lawson  718,  726,  741 
De  Graffenreid  v.  Green  541 

Dehon  v.  Foster  72 

Deibert's  Appeal  299,  30-5,  310 

Delhi  V.  King  380 

De  Jarnette  v.  De  Jarnette  453,  461 
Dekljn  v.  Watkins  71 

Delafield  v-  Anderson  187 

V.  Calden  891 

Delagarde  v.  Lampriere  630,  045 

Delane  v.  Delane  141 

Delaplaine  v.  Lawrence  774 

Delaplane  v.  Lewis  2-59 

Delassus  v.  Poston  232 

De  Laurencel  v.  De  Boom        257 

Delavante, /n  re  890 

Dellinger's  App.  672 

Deloney  i\  Hutcheson  136 

Delorane  v.  Brown  855,  862,  8(58 

Dclouche  V.  Savetier  803 

De  Manneville  v.  Crompton  171,  218, 
460,  400,  508,  509 


Ivi 


INDEX    TO    CASES    CITED. 


Section 
Dc  MiinnevlUe  v.  De  Maimeville  603 
DoMKill  ('.  Morgan  G02g 

Deiiiaroe  r.  Driskill  149 

Demarest  v.  Wjnkoop  218,  602  t, 

602  bb,  680,  855 
Do  Montniorency  v.  Devereaux  202 
Domott  r.  iMulkT  680 

Den  r.  Oawford  299 

V.  Hanks  299 

Dciiike  r.  Harris  452 

Doning  r.  Ware  100,  111 

Doiin  i:  McKnight  217 

Denne  v.  Judge  263,  273 

Dennett  v.  Dennett  299 

Dennis  r.  Badd  611 

V.  Dennis  t^28 

V.  McCagg  215 

V.  McCoy  206 

Dennison  v.  Goehring         98,  104,  109, 

111,  140,  143,  359,  3(51 

642 

918 

257 

709 

189,  190,  204,  210 

477,  552 

83,  841,  844,  9G5 

329 

187,  188 

167 

722,  729,  731 


V.  Nigh 
Denny  v.  Allen 

V.  Kettel 

Dent  V.  AUcroft 

V.  Bennett 

V.  Dent 
Denton  v.  Davis 

V.  Denton 

V.  Donner 

V.  McKenzie 
Denver  v.  Druee 
De  Peyster  v.  Clarkson  463,  468 

V.  Clendinning    240,  259,  262,  263, 
275,  280,  541 

t;.  Ferrars  343,411,414 

V.  Gould  126,  137,  138 

V.  Michael  537 

De  Peyster's  Case  918 

Derasmes  v.  Dunham  275 

Derbishire  v.  Home  671,  846,  849 

Derby  v.  Derby  699,  720,  724,  748 


Deronie  v.  Vose 

Derry  v.  Derry 

Derush  v.  Brown 

De  Ruyter  v.  St.  Peter's  Church 


De  Saussure  v.  Lyons 

Desbody  v.  Boyville 

Desborough  r.  Harris 

])e  Silver's  Estate 

De  riiemmines  v.  De  Bonneval 

715,  718,  726,  741 
Devaynes  v.  Robinson      768,  800,  822, 


843 

127,  828 

322 

588, 
754 
499 
513 
792 
189 

702, 


Devenish  ?•.  Baines 
Devey  v.  Thornton 
Devin  r.  Henderchott 
De  Vinney  v.  Norris 

V.  Reynolds 
De  Visne,  In  re 
Devoy  c.  Devoy 


823,  845,  878 

169,  181,  182 

901,  927 

321 

202 

783 

144 

144,  147 


Section 

Dewall  V.  Covenhoven  629,  654 

Dewdney,  Ex  parte  228,  481,  855 

De  Weever  v.  Kockport  623 

Dewey  v.  Adams  591 

V.  Littlejohn  591 

V.  Long  126 

Dewey's  Ex'rs  v.  Ruggles  795 

De  Witt  V.  Eldred  648 

De  Wolf  V.  Chapin  585 

Dexter  v.  Arnold  228 

V.  Gardner    705,  706,  724,  737,  748 

i\  Stewart  231 

Devs  V.  Van  Valkenberg  602  i 

Dial  V.  Dial  518,  890 

Dias  V.  Brunell  843 

Dibble  V.  Mitchell  237 

Dibbs  V.  Goren  931 

Dick  V.  Pitchford    386  a,  555,  646,  652, 

653,  921 

Dickenson  v.  Davis  143 

Dickerman  v.  Abrahams  660 

Dickerson  v.  Carroll  815  c 

Dickerson  v.  Smith  175 

Dickerson's  App.  86 

Dickinson,  Ex  parte  332 

V.  Chase  238 

V.  Codwise  127,  129 

V.  Conniff  526 

V.  Dickinson  76,  582,  772 

V.  Hoomes  71 

V.  Player  454 

V.  Shaw  145 

V.  Teasdale  863 

Dickson  v.  Lockyer  225 

V.  Montgomery    724,  728,  731,  748 

Dickson's  Trust  555,  930 

Diefendorf  v.  Spraker        268,  401,  921 

Dietterich  v.  Heft  471 

DifEenderffer  v.  Winder   468,  471,  472, 

918 

Digby  V.  Irvine  658 

Digges's  Case  5116 

Diggs  V.  Walcott  72 

Dike  V.  Ricks  785,  789 

Dilkes  V.  Broadmead  932 

Dill  V.  McGehee  843 

Dillard  v.  Crocker  126,  219,  221 

V.  Dillard  149 

i\  Tomlinson  462,  468 

Dillaye  v.  Commercial  Bank     218,  225 

V.  Greenough  95,  158 

Diller  v.  Brabaker  851 

Dillinger  v.  Llewelyn  97 

Dillon  V.  Bone  100 

V.  Coppin        97,  98,  100,  103,  107, 

111 

V.  Grace  656 

Dilworth  v.  Rice  500 

Dimes  V.  Scott    402,  422,  450,  467,  547, 

548,  549,  551,  847 

Dinn  v.  Grant  231 


INDEX    TO    CASES    CITED. 


Ivii 


Section 

Section 

Dinsmore  i:  Biggert 

31»,  319 

Doe  V.  Ewart 

305 

V.  Uiiciiie 

757 

V.  Field 

304,312 

D'liivernois  v.  Leavitt 

590 

V.  Godwin 

414,  505 

Dinwiddie  c  liaiiey 

871 

V.  Halcombe 

530 

Dipple  V.  Corles 

86,97 

V.  Hardwicke 

530 

Disher  v.  Dislier 

97 

V.  Harris 

261, 

267,  270 

Dismukes  v.  Terry 

137 

V.  Hawthorne 

702 

Dix  V.  Akers 

874 

V.  Hicks 

312,  319 

V.  Burford 

263, 

417,  419 

V.  Hilder 

349 

r.  Cobb 

438 

I'.  Hole 

530 

V.  Read 

272 

V.  Homfray 

305,  313 

Dixon  V.  Caldwell 

211,218 

V.  Howells 

698,  699 

V.  Dixon 

238,  640 

V.  How  land 

315 

V.  Gay  fere 

235 

V.  Hughes     501, 

597, 

802 

803,  805 

V.  Hill 

221 

V.  Ironmonger 

305 

V.  Homer 

275, 

287,  918 

V.  Keen 

871 

V.  Horner 

272 

17.  Keir 

51U 

V.  McCue 

456 

V.  Langdon 

349 

i\  Miller 

661,  675 

V.  Lightfoot 

338 

V.  Olmius 

181,  648 

V.  Lloyd 

354 

V.  Saville 

323 

V.  Martin 

785 

V.  Smith 

817 

V.  Nepeau 

929 

Dobbins  v.  Stevens 

202 

V.  Nichols 

311 

Dobson  V.  Land 

431,  437 

V.  Passingham 

301,  304 

V.  Leadbeater 

210 

V.  Phillips 

866 

V.  Fearce 

72 

V.  Pitcher 

706 

V.  Racey        195,  107 

100, 

206,  228 

V.  Pratt 

570 

Docker  v.  Somes        427, 

429, 

480,  454, 
464,  470 

I'.  Price 
V.  Read 

346 

350 

Dockey  v.  McDonald 

914 

V.  Roake 

511c 

V.  McDowell 

456 

V.  Robinson 

408, 

602  k,  602  aa 

Docksey  v.  Docksey 
Dod  V.  Dod 

150 

361 

V.  Roe 

V.  Routledge 

490 
165,  303 

Dodd  v.  Geiger 

642 

V.  Scott 

305 

V.  Wake 

380,  383 

V.  Scribner 

592 

1\  Winship 

927 

V.  Simpson 

308,  313 

Dodds  V.  Hills 

829 

V.  S  meddle 

312 

Dodge  r.  Cole 

127 

V.  Smith 

270 

V.  Essex  Ins.  Co. 

855 

V.  Stace 

809 

V.  HoUinshead 

685 

V.  Steaple 

353 

V.  Manning 

576 

V.  Stephens 

529,  530 

V.  Pond 

74S 

V.  Sybourn    349 

350, 

351 

352,  355 

V.  Stevens 

195,  816  a 

V.  Thorley 

5116 

V.  Woolsey 

816 

V.  Vincent 

511c 

Dodkin  v.  Brunt 

38,  240 

V.  Walbank 

308 

Dodson  V.  Ball            304 

311 

323,  652 

V.  Walker 

93 

u.  Dodson 

366 

V.  Willan 

308 

,  312,  318 

V.  Hay 

323 

324,  371 

V.  Williams 

530 

V.  Samnell 

455 

V.  Woodhouse 

313 

V.  Simpson 

225,  810 

V.  Wright 

352,  355 

Doe  V.  Aldridge 

703 

Doebler's  App. 

358 

V.  Bennett 

338 

D'Oeschener  v.  Emerson 

171,  230 

V.  Biggs 

297 

305,  306 

V.  Scott 

670 

V.  Cafe 

308 

315,  357 

Doggett  V.  Hart 

17,  328 

V.  Cavan 

5116 

V.  Lane 

204 

V.  Claridge            308 

310 

312,  317 

Dolan  )'.  Mayor  of  Baltimore 

768 

V.  Collier 

298 

V.  McDermot 

699,  705 

V.  Cook 

355 

Dolbiac  v.  Dolbiac 

665 

V.  Copesteak 

703 

Dold  ('.  Gei*er 

628 

V.  Duval 

602  A 

Dolder  v.  Bank  of  England 

826 

V.  Edlia 

305 

Dole  v.  Lincoln 

87 

Iviii 


INDEX   TO    CASES   CITED. 


Section 

Section 

Dolliiiger's  Appeal 

77 

Dover  v.  Kennedy 

7»0 

Dolniaii  L\  Nokes 

17!) 

Dow  V.  Dawson 

438 

Doniiiiick  v.  Micliael 

34, 

499,  500 

V.  Jewell        126, 

132, 

140, 

141,  865 

v.  Say  re 

250,  414 

V.  Platner 

590 

Dominett ;-.  Bedford 

388,  555 

Dow's  Petition 

610 

Doiialioe  v.  Coiiraliy 

83 

Dowd  V.  Tucker 

171 

181,  182 

Donalds  v.  Plumb 

347,  660 

Dovvell  V.  Dew 

656 

Donaldson  v.  American  Tract  Soc. 

Dowling  I'.  Belton 

611 

391,  748 

Dowling  V.  Feeley 

209 

V.  Donaldson          98, 

100 

102,  105 

V.  Hudson 

795 

V.  Pusey 

918 

V.  Maguire 

653, 

657,  658 

V.  West  Bank 

640 

Dowman  r.  Rust 

569 

570,  796 

Doncaster  r.  Doncaster 

359, 

372,  373 

Down  V.  Morris 

327,  435 

Donegal's  Case 

1.^9 

V.  Worrall 

714, 

721,  731 

Doniphan  v.  Pax  ton 

602# 

Downer  v.  Church 

152 

Donisthorpe  v.  Porter 

348 

V.  Downer 

507 

Donlin  r.  Bradley 

126 

Downes  v.  Bullock 

851,  932 

Donne  v.  Hart 

633 

V.  Grazebrook 

128, 

195, 

347,  770, 

r.  Lewis 

563 

786 

Donoluie  r.  Chase 

602  s 

V.  Hodgson 

931 

Dooian  v.  Blake 

670 

V.  Jennings 

183,  208 

Doolittle  V.  Lewis         600,  602  g,  602  n, 

V.  Thomas 

883 

602  ^e 

V.  Timperon 

656 

Doran  v.  Simpson 

225 

Downey  v.  Bullock 

618 

V.  Wiltsliire          597, 

776 

794,  796 

Downing  v.  Marshall 

894 

Dorance  v.  Scott 

661 

V.  Townsend 

109 

Dorchester  v.  Effingham 

390,  443 

Downs  V.  Richards 

129 

Doremus  v.  Lewis 

591 

Doyle  V.  Blake    259, 

261, 

262, 

264,  268, 

Dorland  v.  Dorland 

499,  501 

401,  403, 

421, 

422, 

914,  927 

Dormer  v.  Fortescue 

871,  872 

V.  Peerless 

246  rt 

V.  Thurland 

5116 

V.  Sleeper 

126,  149 

Dornford  v.  Dornford 

468, 

472,  847 

Doyley  v.  Att'y-Gen. 

249,  255 

258,  503 

Dorr  V.  Davis 

127 

D'<Jyley  v.  Loveland 

598 

Dorr  V.  VVainwright 

262 

263,  574 

I^oyly  V.  Sherratt 

411 

Dorsett  v.  Dorsett 

555 

Drake  v.  Moore 

Q0-2dd 

Dorsey  v.  Clarke 

126, 

133,  135 

V.  Pywall 

17 

V.  Dorsey 

209,  018 

V.  Rogers 

592 

i;.  Garcey 

15,  843 

V.  Whitraore 

768 

V.  Gilbert 

610 

Drakeford  v.  Wilks 

226 

V.  Thompson 

275 

Drane  v.  Dayliss 

500 

Doswell  iJ.  Anderson 

118,  386  a 

V.  Gunter          268,  274,  336,  602  m 

V.  Buchanan 

221 

Draper  v.  Minor 

275 

Doty  V.  Mitchell 

655,  661 

Draper  v.  Stone 

844 

V.  Wilson 

lUO 

Drapers'  Company  v. 

Davis 

203 

Dougars  v.  Jtivaz 

742 

Drasier  v.  Brereton 

96, 

417,  447 

Douglass  V.  Allen 

597 

Drayton  v.  Drayton 

501 

V.  Andrews 

613 

V.  Grimke 

500 

V.  Archbutt 

432,  904 

V.  Pocoek 

764, 

770, 

787,  807 

V.  Browne 

402 

Drennen  v.  Walker 

215 

V.  Congreve 

359,  551 

Dresser  v.  Dresser 

112 

V.  Culverwell 

202 

Drever  v.  Mawdesley 

600 

V.  Horsefall 

874 

Drew  V.  Martin 

144 

V.  Lucas 

141 

V.  Norbury 

223 

V.  Price 

143 

V.  Wakefield 

891,  899 

V.  Russell 

68 

Dring  r.  Greetham 

481 

V.  Satterlee 

421 

Drinkwater  v.  Combe 

348 

V.  Stephenson's  Ex'or 

443 

Driver  v.  Fortner 

602 

0,  602  cc 

Douihitt  V.  Stinson 

890  rt 

Drohan  i-.  Drohan 

484,  809 

Dove  V.  Everard 

• 

261 

Druce  v.  Denison 

635 

Dover,  Ex  parte 

263,  281 

Druid   Park   Heights 

Co 

.    V. 

Get- 

V.  Gregory 

570 

tinger 

249,  508 

INDEX   TO    CASES   CITED. 


lix 


Drummond  v.  St.  Albans 

V.  Tracy 
Drury  v.  Connor 

V.  Cross 

c.  Drury 

V.  Hook 


Section 
872 

49,50 

245 

207 

84 

214 


V.  Natick  500,  700,  724,  748 

V.  Scott  Q26,  668 

V.  Smith  87 

Drusadow  r.  Wilde  511  c,  783 

Dryden  v.  Frost  238 

V.  Haiinaway  133 

Dryden  Ad.  v.  Stephens  770 

Drysdale's  Appeal  205,  U18 

Duberly  v.  Day  633 

Dubless  V.  Flint  820,  827 

Dublin  Case         42,  732,  73<3,  734,  744, 

745,  748 

Dubois,  Ex  parte  332 

V.  Hall  232 

Dubose  V.  Dubose  602 

Dubs  V.  Dubs  323,  324,  652 

Duckett  V.  Skinner  610 

Dudgeon  i>.  Connley  988 

Dudley,  Ex  parte  613 

V.  Batchelder  133 

V.  Bos  worth  139,  143,  146,  147 

Duff  o:  Wilson  211 

Duffy  V.  Calvert     284,  598,  602  r«,  787, 

791,  796,  797 

V.  Duncan  468,  918 

i:  Masterson  134 

Duffy's  Trust,  In  re  634 

Dugan  V.  Vattier  221 

Dugas  V.  Gilbeau  204,  205 

Dugdale  y.  Dugdale  903  a 

Duggain  V.  Kelly  515 

Du  Hourmelin  v.  Sheldon  64 

Duke  V.  Fuller  705,  710,  730,  748 

Duke  of  Norfolk  v.  Brown  161 

Duke  of  Norfolk's  Case    377,  379,  382, 

383 

Dumas,  Ex  parte  345 

Dummer  v.  Chippenham  42,  511  a 

V.  Pitcher  144,  146,  162 

Dumoncel  v.  Dumoncel  64 

Dumond  v.  Magee  627,  629 

Dunbar,  fn  re  77,  83 

V.  Meyer  680,  686 

V.  Tredennick  206,  217,  828 

V.  Woodcock  451 

Duncan  v.  Camberlayne  438 

V.  Camjjbeli  634 

V.  Findlater  744,  914 

V.  Forrer  136 

V.  Jaudon  225,  814 

V.  Joiinson  221 

V.  McCalmont  72 

Duncan's  Appeal  213 

Dunch  V.  Kent   428,  585,  593,  597,  795, 

796 


Section 

Duncomb  v.  N.  Y.  H.  &  No. 

R.  R.  Co.  129 

Duncombe  v.  Alston  480,  487 

Duncommer's  Appeal  417,  419 

Dundas  v.  Biddle  48,  511  b 

V.  Blake  559 

Dungannon  v.  Smith  385,  389 

Dunham  v.  Chatham  75 

y.  Isett  757 
V.  Milhous  539 

V.  Waterman  590 
Dunkley  v.  Dunkley  626,  632,  635,  636 


Dunklin  v.  Wilkins 
Dun  lap  V.  Harrison 
V.  Mitchell 
V.  Plumb 
Dunlop  V.  Burnett 
V.  Dunlop 
V.  Hepburn 
V.  Hubbard 
Dunman,  Ex  parte 
Dunn  (>.  Chambers 


69 

65 

195,  205,  428 

655 

232,  239 

85 

55 

891 

780 

187,  188,  189 


Dunn         195,  453,  455,  460,  847 


639 

873 
184,  185 
467,  552 

164 
500,  501 

686 


629,  633 
438 


V.  Sargeant 

V.  Seymour 

Dunnage  v.  White  157, 
Dunne  v.  Dunne 
Dunnica  v.  Coy 
Dunning  v.  National  Bank 

V.  Pike 

Dunscomb  v.  Dunscomb  240,  462,  468, 

900 

V.  Greenacre 
Dunster  v.  Glengall 

Dunwoodie  v.  Reed  523 

Duplex  V.  Roe  295 

DvL^ont,  Ex  parte  55 

V.  Johnson  612 

Dupre  V.  Thompson  98 

Durand  v.  Durand  672 

Durant  v.  Fitley  672 

V.  Lalley  639 

V.  Ritchie  32,  299,  301 

Durfee,  In  re  276 

Durham  v.  Crackles  633 

Durling  v.  Hammer  429 

Durnford  v.  Lane  34 

Durour  v.  Motteux  701,  706 

Durpee  v.  Pavitt  142 

Durr  V.  Bowyer  627,  632 

Dustan  v.  Dustan  901 

Dutch  Church  v.  Mott  349,  351 
Dutch  Reformed  Church  v.  Ban- 


don 
Dutton  V.  Cotton 

V.  Morrison 

r.  Poole 
Duval  r.  Getting 
Du  Val  V.  Marshall 
Duval's  App. 
Duvall  f.  Bibb 


393 

602  p,  602  q 

587,  590 

181,  182 

110 

133 

768 

232,  239,  299 


Ix 


INDEX    TO    CASES    CITED, 


Section 

Section 

Duvall  ;•.  Covcnhnven 

843 

Echols  V.  Dimik 

602  dd 

V.  Fanners'  Jiank 

627,  6.J2 

Eckels  V.  Stewart 

304 

V.  Graves 

G47 

Eckford  c.  De  Kay 

458,  606 

Pwight  V  I'omroy 

226 

Eddleston  v.  Collins 

52 

Dyer  V.  Dyer      12G,  143, 

145, 

146,  161, 

Eddowes,  In  re 

252 

162,611 

Eddy  V.  Hartshorne 

121 

V.  Jacoway 

836 

Eddy  V.  Smith 

602^ 

V.  Potter 

8dl 

V.  Traver 

2o8 

V.  Slmrtleff 

199 

Edelen  v.  Edelen 

679 

Dyer's  App. 

82 

Eden  v.  Foster 

734,  742 

Dyett  i:  Coal  Co. 

655,  660 

Edgar  v.  Donnally 

127 

Dykes  v.  McVay 

849 

Edge  V.  Salisbury 

256 

Dyott's  Estate 

463 

468,  918 

Ediiell  V.  Haywood 
Edgington  v.  Williams 
Edie  r.  Applegate 

570 
149 
818 

E. 

Edmands  v.  Bird 

189 

t'.  Crenshaw 

205, 

418,  422, 

Eade  v.  Eade 

112 

11.3,  116 

4.32,  918 

Eager  v.  Barnes 

41»,  846 

V.  Dennington 

653 

E:igle  Eire  Company  v.  Lent 

33 

V.  Reake 

444,  786 

Eales  V.  England 

112 

116,  325 

V.  Townshend 

630 

Eames  v.  Hardin 

126 

Edmeston  v.  Lyde 

594 

Eames  v.  Wheeler 

98 

Edminster  v.  Higgins 

232 

Earl  of  Bath's  Case 

171,  180 

Edmondson  v.  Dysod 

35ri,  370 

Earl  of  Bute  v.  Short 

112 

V.  Walsh 

60 

2  t,  602  w 

Earl  of  Darlington  v.  Putney 

511  h 

Edmund's  App. 

310  rt 

Earl  of  Oxford  v.  Albem 

arle 

768 

Edowes  V.  Edowes 

901 

Earle  v.  Huntingdon 

858 

Edwards  v.  Bates 

843 

Earle  v.  Earle 

260,  417 

V.  Bohannon 

238 

Earle  v.  Wood             705 

,724 

733,  748 

V.  Burt 

188 

Earle's  Trusts,  In  re 

93 

V.  Edwards 

126 

133,  144 

Earloni  v.  Saunders 

461 

V.  Fashion 

136 

Early  v.  Doe 

602  r 

V.  Field 

144 

Earp's  Appeal 

299, 

305,  545 

i\  Freeman 

17,  .577 

Will 

556 

V.  Graves 

17,  249 

Ease  V.  Howard 

298 

V.  Grove 

615 

East  V.  East 

440 

V.  Hall 

709 

V.  Lowndes 

395 

V.  Harvey 

747 

774,  891 

V.  Kyall 

747,  901 

i\  Jones 

97,  98,  101 

V.  Twyford 

359,  372 

V.  Lewis 

196 

East  Greenstead's  Case 

8.30 

V.  Lowndes 

17 

Easterbrooksr.  Tillinghast  160,724,748 

I'.  Meyrick 

197,  202 

Easterly  v.  Keney 

386  a 

V.  jMillbank 

5::!9 

Eastern  R.  R.  Co.  In  re 

280 

V.  Morgan 

871,  872 

Eastham  v.  Roundtree 

127 

V.  Pike 

216 

Eastman  v.  Cooper 

814 

V.  Roberts 

228 

Easton  v.  Carter 

262 

V.  Sheridan 

639 

Eaton  V.  Eaton 

75,77 

V.  Tuck 

397,  584 

V.  George 

685 

V.  Warwick 

867 

V.  Green 

226 

Eedes  v.  Eedes 

633,  634 

V.  Smith               273, 

284, 

290,  294, 

Efland  v.  Efland 

324 

497, 

507, 

508,  721 

Egbert  v.  Brooks 

910,916 

V.  Wason 

680 

V.  Butler 

419, 

424,  440 

V.  Whiting 

602  d,  602  bb  1 

V.  Schultz 

380 

V.  Witts 

115 

Egerton  v.  Brownlow 

359,  380 

Eaves  v.  Hickson        402, 

851, 

929,  931 

V.  Carr 

99 

El)berts's  App. 

127 

V.  Conklin 

500 

Eberts  v.  Kberts 

200 

V.  Egerton 

900 

E brand  v.  Dancer 

54, 

1.30,  144 

Eglin  r.  Sanderson 

900 

Ecoleston  /'.  Skelmersdale 

876 

Ehlen  v.  Ehlen 

275 

Echlitf  y.  Baldwin 

602  ee 

Eichelberger  v.  Barnitz 

380, 

541,  547 

INDEX   TO   CASES   CITED, 


Ixi 


Eidsforth  v.  Armistead 
Eland  v.  Baker 
V.  Eland 


Section 

802,  80;^.,  805 

768 

597,  795,800,  801, 

802,  810 

307,  90:J  a 

ti65 

248,510,  511 

86(3 

676,  677 

195,  199 

882 

629,  635 

679 


Elbonie  v.  Goode 

Elder,  Ex  parte 

Eldredge  v.  Heard 

V.  Knott 

V.  Preble 

V.  Smith 

Eldridge  v.  Putnam 

Elibank  i\  Montolieu 

Elijah  V.  Taylor 

Elkins  V.  Tresliam  173 

pjUenborough  v.  Canterbury     891,  891 

Ellett  V.  Paxson  780 

¥,[\\ce,  Ex  parte  457 

EUicombe  v.  Gompertz  380 

Kllicott  V.  Barnes  122 

Ellioott  V.  Chamberlin  209 

EUicott  V.  Welch  239 

Elling  V.  Naglee  918 

ElHot  V.  Ince  35 

Elliott  V.  Armstrong   126,  137,  139,  347 

t'.  Boaz  174 

V.  Connell  226 

V.  Cordell  626,  634 

V.  Deason  520 

V.  Edwards  236,  23',) 

V.  Elliott        54,  143,  145,  146,  147, 

151,  161,  851 

V.  Hancock  569,  570 

V.  Hart  149 

V.  Lewis  880 

V.  Merriman         597,  598,  795,  796, 

798,  802,  810,  814,  867 

V.  Pool  195 

V.  Sparrell  263,  468,  471 

V.  Waring  632 

V.  Wood  199,  602  d,  602  //, 

602  p,  602  i- 

Elliott's  Executors,  Appeal  of  101 

Ellis  V.  Aniason  438 

V.  Atkinson  670 

V.  Baldwin  639 

V.  Barker  427,  433,  900 

V.  Boston,  Hartford,   &   Erie 

R.  R.  Co.  273,  284 

V.  Ellis  113,  253,  901,  908 

V.  Essex  Merrimack  Bridge 


V.  Fisiier 
V.  Guavas 
V.  Kenyon 
I'.  Maxwell 
V.  NiHimo 
V.  Selby 
(.•.  Woods 
Ellison  V.  Airey 
V.  Ellison 

V.  Elwin 


312,  315 

243 

680 

395,  397 

107,  108,  109 

151,  159,  711,  712 

648 

569 

96,  98,  100,  104,  107, 

367 

626 


Section 

Ellison  V.  Woody 

546 

Ellison's  Trust,  In  re 

270,  271 

Ells  V.  Lynch 

385 

Elisworthy  v.  Hinds 

640 

Elmendorf  i:  Lansing 

418 

V.  Taylor 

228,  855 

Elmer  v.  Scott 

694,  724 

Elmlie  v.  McAuIay 

225 

Elmore's  Trusts 

451 

Kims  V.  Huglies 

639 

Elmsley  v.  Young 

257 

F.lsee,  Ec  parte 

910 

Elsey  I'.  Lutyens 

747.  891 

Elstner  v.  Fife 

259,  500 

Elthan  Parish  v.  Warreyn 

704 

Elton  V.  Elton 

375 

V.  Harrison 

501,  802 

V.  Shepherd 

318,  655 

Elwell  V.  Chamberlain 

172 

Elwurthy  v.  Bird 

672,  673 

V.  Wickstead 

633 

Elwyn  r.  Williams 

641 

Ely  V.  Cook 

591 

V.  Hair 

590 

1-.  Turpin 

602  0 

Emblym  v.  Freeman 

157 

Emelie  i'.  Emelie 

455 

Kmerick  v.  Emerick 

229 

Emerson  r.  Cutler 

920 

r.  Spicer 

608 

Emery  v.  Batchelder 

452 

Emery  v.  Chase 

299 

V.  Grocock 

349,  352 

V.  Hill 

741 

Emmet  v.  Clarke 

286 

V.  Dewhirst 

184 

V.  Emmet 

471 

Emmons  v.  Cairns 

541,  547 

Emperor  v.  Rolfe 

580 

Encking  y.  Simmonds 

602  h,  602  z 

Enders  r.  Public  Works 

754 

Enfield  Toll  Bridge  v.  Hartford        757 

England,  In  re  613,  618 

y.  Downes  213,267,901 

V.  Slade  349,  351,  355 

English  V.  Miller  72 

V.  Russell  232 

Ennis  v.  Leach  602  aa 

Enniss  v.  Smith  511  r; 

Enos  V.  Hunter  137 

Ensley  v.  Balentine   126,  128,  134,  135, 

137 
Entwistle  v.  Markland  550 

Episcopal  Church  v.  Wiley  71 

Erickson  v.  Willard  112,  248 

Erisman  r.  Directors  of  Poor        511  a 


Ernest  i\  Croysdill 
Errat  v.  Barlow 
Errington  v.  Chapman 

i\  Evans 
Erskine  v.  Townsend 


839,  840,  859 

616,619 

616,619 

245 

226 


Ixii 


INDEX   TO   CASES   CITED. 


Section 

Section 

Erskine's  Trusts 

6o4 

Everston  v.  Mayhew 

bzS 

Ervin's  xVppeal 

610,  78a 

Pvverts  V.  Agnes 

220,  221 

Erwin  r.  Ilall 

815  c 

Evert^on  c.  Tappan 

428 

Erwin  v.  rarliani 

187,  188 

Evroy  v.  Nickolas 

53 

V.  iSeigling 

918 

Ewbank  v.  Paston 

235,  239 

Esclieator  v.  Smith 

55,  310 

Ewen  V.  Bannernian 

714 

Esliam  V.  Lamar 

187 

V.  Smith 

655,  661 

Eslielman  v.  Lewis 

127 

Ewer  V.  Corbett          225, 

809, 

810,  812 

i.-.  Sliunian 

641 

Ewing  V.  Furness 

891 

Eskridge  v.  McClure 

232,  239 

V.  Higby 

774 

Espey  V.  Lake 

194 

V.  Osbaldiston 

231 

Espin  V.  Peniberton 

222 

Exel  V.  Wallace 

859 

Essex  V.  Atkins 

653,  6(57 

Exeter  i\  Exeter 

186 

Estabrook  v.  Earle 

686 

V.  Odiorne 

299, 

305,  307 

Estate  of  Hinckley 

737 

Ex  jiarte  Jordan 

449 

Estes  V.  Tillinghast 

104 

Exton  r.  Scott 

103 

Estwick  V.  Callaud 

590 

Eyre  v.  Dolphin 

196,  538 

Etches  V.  Etches 

886,3 

86  a,  555 

V.  Fitton 

5116 

Etting  V.  Bank  of  U. 

States 

178,  179 

V.  Marsden 

160, 

395,  397 

Etty  V.  Bridges 

438 

V.  Potter 

187 

European  K.  K.  Co. 

V.  Poor 

194,  207 

V.  Shaftesbury 

414, 

505,  603, 

Eustace  v.  Seamen 

298 

631 

694 

695,  724 

Evangelical  Association  Appeal      7oO, 

Eyrick  v.  Hetrick 

56 

259,  555 

733,  748 

Eyton  V.  Eyton 

183 

Evans  r.  Bagwell 

593 

V.  Battle. 

97 

V.  Bickiiell 

171,  438 

F. 

V.  Chew 

500 

V.  Cheshire 

188 

Fagg's  Case 

218 

V.  Coventry 

818 

Fairbanks  v.  Lamson 

701,  748 

V.  Da  vies 

66 

Fairhurst  v.  Lewis 

148 

V.  Ellis 

202 

Fairman  v.  Bavin 

206 

V.  Evans 

373 

V.  Green 

616,  618 

V.  Gibson 

127 

Fairtitle  v.  Gilbert 

750 

V.  Gillespie 

647 

Falk  V.  Turner 

204,  210 

V.  Goodlett 

232,  237 

Falkland  v.  Bertie 

871 

V.  Hellier 

584 

Falkner  v.  Equitable  Society 

786 

V.  Iglehart 

546,  547 

V.  O'Brien 

192 

V.  Jackson 

769 

V.  Wynford 

248,  250 

V.  John 

259,  261 

Fall  V.  Simmons 

471,  918 

V.  Kingsbury 

499 

Fallen,  In  Matter  of 

54 

V.  Kneeland 

179 

Fambro  v.  Gantt 

225 

V.  Ktioar 

647,  649 

Fane  v.  Devonshire 

189 

V.  Llewellyn 

171,  184 

185,  192 

V.  Fane 

94 

V.  London 

697 

Fanning  v.  Ker 

602  rf 

V.  Massey 

615 

618,  619 

Fansler  v.  Jones 

138 

V.  Potter 

243 

Farie's  Appeal 

652,  668 

V.  Russell 

104 

Paris  V.  Dunn 

137 

V.  Scott 

580 

Farley  v.  Blood 

127 

V.  Secrest 

640 

V.  Bryant 

184,  186 

V.  Stokes 

885 

V.  Kittson 

206 

V.  Tweedy 

558,  559 

V.  St.  Paul,  M.  &  M. 

R.  R 

427 

Evans's  Estate 

418,  419 

V.  Shippen                 64,  71 

131,  136 

Evarts  v.  Nason 

863,  918 

Farmer  v.  Compton 

517 

Evelvn  V.  Templar 

107 

109,  111 

V.  Dean 

780 

Everett  v.  Carr    697, 

705,  720 

722,  733 

V.  Farmer 

192 

V.  Henry 

195 

V.  Lesley 

591 

V.  Prytheregch 

275 

,816,818 

r.  Martin 

511a 

V.  Railway 

828 

Farmers'  Bank  v.  Douglass 

187.  590 

Everitt  v.  Everitt 

104 

V.  King 

127,  128 

Everson  v.  Pitn 

27 

918 

V.  Way  man 

242 

INDEX   TO    CASES   CITED. 


IXlll 


Section 
Farraers'  Loan,   &c.    Co.  v.  Com- 
mercial Bank  759 
V.  Henilrickson                              759 
V.  Huglies                                      275 
V.  Maltby                                       221 

Farmer's  Nat.  Bank  v.  Moran 

812,  520 
Farnam  v.  Brooks      178,  195.  206,  210, 
2^0,  855,  803 
Farneyhough  v.  Diekerson  918 

Farnsworth  v.  Child  223 

Farquharson  v.  Eiclielberger  314 

V.  Seton  876 

Farr  v.  Farr  229,  230 

V.  Gilreath  300 

V.  Sherriffe  886,  888,  903  a 

Farrance  v.  Viley  62-t 

Farrant  v.  Blanchford  851 

Farrar  v.  Barraclougii  457,  4H7 

V.  Farley  205 

Farrell  v.  Lloyd  137,  142 

V.  Smith  294,  928 

Farrelly  v.  Ladd  343,  843 

Farrier  v.  Cames  891 

Farringer  v.  Ramsey  126,  137 

Farrington  v.  Barr  162 

V.  Knightly  17,  154 

Farris  v.  Dunn  223 

Fassit  V.  Phillips  592 

Fast  V.  McPherson  212 

Fatheree  v.  Fletcher  143 

Faucett  v.  Faiicett  195 

Faulkner  v.  Daniel  347 

V.  Davis  249 

Fawcett  v.  Gere  212 

V.  Lowther  327 

Fawell  V.  Heelis  236,  239 

Fawkner  v.  Watts  612 

Fay  V.  Fay  75,  308 

V.  Howe  471 

V.  Petis  757 

V.  Slaughter  739 

V.  Taft  121 

Fearns  v.  Young  449,  450,  547,  549,  910 

Fearon  v.  Desbrisay  511  a 

V.  Webb  23,  384 

Fears  v.  Brooks    646,  647,  649,  655,  660 

Featherstonaugh  v.  Fenwick    196,  453, 

470,  538 

Feedey's  App.  313 

Feistal  v.  King's  College  69 

Fell  V.  Brown  71,  72,  883 

V.  Lutwidge  900 

Fellows  V.  Gwydyr  172 

V.  Ileermans  95,  318,  334 

V.  Mitchell    411,  416,  446,  809,  849 

V.  Tann  646 

Feltham  v.  Clark  438 

V.  Turner  511 

Felton  V.  Deal  767 

Fendall  v.  Nash  619 


Section 

Fenner  v.  Tucker 

602  r 

Fenniniore  v.  Fennimore 

421 

Feniio  V.  '6a,\  re 

231 

Fenwick  v.  Chapman 

671 

V.  Greenwell  248,250,260,417,845 

Ferdey's  Appeal 

313 

Ferebere  v.  Proctor 

765 

Fergerson  v.  Fergerson 

184 

Fergus  v.  Gove 

601 

Ferguson  v.  FrankUn 

55 

V.  Hass 

226 

V.  Livingston 

862 

V.  Sutphen 

183 

V.  Tadman 

122 

V.  Williamson 

172 

Ferraby  v.  Hobson 

528 

Ferraria  v.  Vasconcellos 

733 

Ferraris  v.  Hertford 

93 

Ferrars  v.  Cherry 

217 

,  828,  830 

Ferres  v.  Ferres 

189 

Ferrin  v.  Errol 

828 

Ferris  r.  Gibson 

380 

V.  Henderson 

229,  230 

Ferry  v.  Laible 

121,5116 

Person  v.  Sanger 

173 

Festing  v.  Allen 

385 

Fettiplace  v.  Gorges 

655,  668 

Feversham  v.  Ryder 

704.  709 

Fiddler  v.  Higgins 

611 

Fidelity  Ins.  Co.'s  App. 

903  a 

Field  V.  Arrowsmith 

195, 

240,  260, 

280,  602  e,  602  v 

V.  Brown 

611 

V.  Donoughmore 

593 

,  600,  927 

V.  Evans 

20,  670 

V.  Field 

738 

V.  Girard  College 

734 

V.  Lonsdale 

144,  165 

V.  Mayor  of  New  York 

68 

V.  Moore 

34 

V.  Beckett 

439 

479,  570 

V.  Schieffelin       225, 

608, 

610,  809, 
812,  814 

V.  Sowle 

658,  661 

V.  Wilbur 

477,  526 

V.  Wilson 

229,  230 

Field's  Mortgage 

OOQ 

OOO 

Fifth  National  Bank 

V.  Hyde 

Park 

815  c 

Filby  V.  Miller 

218 

Filch  V.  Weber 

157 

Fillman  v.  Divers 

127 

Fillmer  v.  Gott 

189 

Finch  V.  Finch     126,  143, 

145 

146,  147 

V.  Hollinsworth 

250,  258 

V.  Raynad 

918 

V.  Shaw 

222 

V.  Wlnchelsea 

108,  122 

Finch's  Case      13,  14,  76, 

241, 

346,  347 

Findcn  v.  Stephens 

123,  907 

Findlay  v.  Riddle 

359,  370 

h 


XIV 


INDEX   TO    CASES   CITED. 


Section 
Findlcy  v.  Patterson  201 

Fink  r.  Fink  748 

Finlay  r.  Howard  275,  282 

Finley  v.  Hunter  715 

V.  Jones  891 

Finn  v.  Hohn  328 

Finney  v.  Cochran  863 

Finney's  Estate,  In  re  337 

Firmin  v.  ruUiam  900 

First  Baptist  Society  in  Andover 

i:  Hazen  312,  520 

First    Congregational    Society   of 

Southington  v.  Atwater     43,  46,  714 
First  Constitutional  Presbyterian 

Ciiurch  V.  Cong.  Soc.  733 

First  National  Bank  v.  Owen  918 

First  Nat.  Bank  of  Easton  v. 

Smith  594 

First  Nat.  Bank  of  Lewiston 

V.  Dwelley  815  h 

First  Nat.  Ins.  Co.  v.  Salisbury         873 

First  Parish  in  Sutton  r.  Cole  43 

First    Mortgage    Bondholders    v. 

Maysville,  &c.  Railway  759 

Fischbeck  •;;.  Gross  181,  915 

FiscliJli  V.  Dumaresley  131 

Fisli  V.  Howland  232,  237 

V.  Miller  851 

V.  Wilson  863 

Fislibourne,  In  re  806 

Fisher  v.  Basset  602  ee. 

V.  Boody  172 

V.  Fields  82,  312,  315,  320 

V.  Filbert  648 

V.  Fisher  556 

V.  Fobes  142 

V.  Johnson  238,  239 

V.  Knox  438 

V.  Smart  918 

I'.  Taylor  555 

V.  Webster  •         3b0 

V.  Wigg  920 

V.  Worth  594 

Fisher's  Will,  In  re  284 

Fisk  V.  Att'y-Gen.  698,  706,  726 

V.  Keen  380 

V.  Sarber  205,  209,  538 

V.  Stubbs  275 

Fiske  V.  W^hite  748 

Fitch  V.  Ayer  649 

V.  Fitch  188 

Fitler  v.  Maitland  591 

Fitzer  v.  Fitzer  673 

Fitzgerald  v.  Fauconberge  511  c 

V.  Field  580 

V.  Fitzgerald  901 

t'.  Jervoise  771 

V.  Jones  908 

V.  O'Flaherty  901 

V.  Peck  184 

V.  Pringle  458,460, 461, 898, 901, 902 


Section 

Fitzgerald  v.  Rainsford  192,  538 

V.  Topping  334 

V.  Vestal  68 

Fitzgibbon  v.  Blake  657,  671 

V.  Scanlan  196,  538 

Fitzpatrick  v.  Fitzgerald  17,  328 

V.  Fitzpatrick  602  r 

Fitzroy  v.  Howard  533 

Fitzsimmons  v.  Joslin  172,  179 

Flack  V.  Holm  72 

Flagg  V.  Ely  454 

V.  Mann                135,  218,  221,  226, 

602  d,  843,  844 

Flanagan  v.  Nolan  462,  900,  901 

Flanders  v.  Clark  249,  505,  510 

V.  Thompson  239 

Flarty  v.  Odium  249,  505,  510 

Flavett  1-.  Foster  423 

Fleming  v.  Armstrong  671 

V.  Buchanan  573 

r.  Cuthbert  863 

V.  Donohoe  75,  143 

V.  Gilmer  858 

V.  McHale  133 

V.  Page  828 

V.  Teran  205 

V.  Wilson  918 

Fletcher  v.  Ashburner  150 

V.  Ashlev  213 

V.  Fletcher              98,  103,  111,  672 

V.  Green        461,  847,  848,  849,  876 

f.  Peck  218,  222 

V.  Stephenson  551,  924 

V.  Walker  443,  463,  900 

V.  Willard  226 

Flint  V.  Clinton  Co.    260, 262, 264, 602  e 

V.  Hughes  116 

V.  Sheldon  302 

V.  Steadman  66 

V.  W^arren  157 

Florentine  v.  Barton  610 

V.  Wilson  672 

Flory  V.  Becker  640 

Flournoy  v.  Johnson  349,  353 

Flowers  v.  Franklin  546 

Floyd  V.  Barker  160 

V.  Floyd  918 

Floyer  v.  Bankes  383 

V.  Gilliam  262 

V.  Sherrard  183,  187 

Flud  V.  Rumsey  244 

Fluke  V.  Fluke  766,  768 

Foden  v.  Finney  633 

Fogarty  v.  Sawyer    602  c,  602  d,  602  g 

Fogg  V.  Middleton  98 

Fofev  1-.  Burnell  373,  541 

V.  Hill  855 

V.  Parry  112 

V.  Wontner           284,  414,  490,  506 

Foljambe  ;-.  Willoughby  615 

Follansbee  v.  Kilbreth  127,  135 


INDEX   TO    CASES   CITED. 


Ixv 


FoUett  V.  Badeau 

Follett  V.  Follett 

V.  Tyrer 
Fonda  v.  Penfield 
Fontain  v.  liavenell 

Foote  V.  Bryant 

V.  Colvia 

V.  Foote 
Foote's  App. 
Forbes  v.  Ball 

V.  Forbes 

V.  Hall 

V.  Halsey 
V.  Latbrop 

V.  Lin  wood 

V.  Moffatt 


Section 

82,  134 

5116 

324 

383 

490,  687,  721, 

724,  729,  731 

137,  142 

126 

179 

645,  556 

112,  248,  256 

704 

223 

205 

815  a 

593 

347 


V.  Peacock  499,  501,  597,  765,  786, 
790, 795, 796, 800, 801,  802,  81: 


V.  Pbillips 

V.  Ross 
Ford  V.  Battey 

V.  Belmont 
V.  Cook 

V.  Hopkins 

V.  Lewis 

V.  Ryan 
Forde  v.  Herron 
Fordham  v.  Wallis 
Fordyce  c.  Bridges 

V.  Willis 
Forest  v.  Forest 


639 

453,  461,  462,  468 

119 

765 

858,  890  a 

837 

131 

794 

187,  602  z 

932 

248,  251,  255,  503 

29,  75,  76,  77,  86,  102 

100 


Forman  i;.  Marsh  610,611 

Forrest  v.  Elwes  466,  905 

V.  Robinson  660 

Forrester  v.  Moore  126 


Forshaw  v.  Higginson 
Forster  v.  Blackstone 

V.  Cockerell 

V.  Hale 

V.  Hoggart 

V.  Ridley 
Forsythe  v.  Clark 
Fort  V.  Fort 


476,  482,  786 

438 

438 

79,  81,  82,  83,  86 

602  c 

906 

126,  133,  226 

639 


Fortescue  v.  Barnett  98, 101,  247  a,  438 
Forward  v.  Armstead  97 

Fosbrook  v.  Balguy  196,  428 

Foscue  V.  Foscue  863 

Fosdick  V.  Fosdiek  393 

Foss  V.  Crisp  55 

V.  Foss  665 

Foster  v.  Athenaeum  Trustees         126, 
133,  237 

V.  Boston  961 

V.  Charles  171 

V.  Coe  318 

V.  Craige  501 

V.  Crenshaw  562 

V.  Davies  276,  441 

V.  Dawber  270,  271 

V.  Deacon  122 


Foster  v.  Dennison 

V.  Durant 

V.  Foster 

V.  Goree 

V.  Gover 

V.  Hodgson 

V.  Kerr 
V.  Latham 

V.  Marriott 

V.  McMahon 

V.  Mix 


Section 

299 

142 

144,  815  a 

602  p 

602  dd 

862 

649 

585 

538 

928 

438 


V.  Pennsylvania  Ins.  Co.  645 

V.  Roberts  188 

V.  Saco  Manufacturing  Co.        591 

Foster's  Will,  In  re  282,  453 

Fothergill  v.  Fothergill  107 

Fountaine  v.  Pellett  626,  554,  912, 

913,  915 

Fourdrin  v.  Gowdy  64 

Fournier  v.  Ingraham  918 

Fouvergue  v.  New  Orleans  182 

Fowey's  Ciiarities  282 

Fowke  V.  Slaughter  133,  135 

Fowle  V.  Merrill  199 

Fowler,  In  re  275 

V.  Colt  462 

V.  Fowler  665 

V.  Garlike  112,  159,  711,  712 

V.  Hunter  117,  251 

V.  Jones  308 

V.  Reynall  453,  461,  466,  875 

V.  Rust  232,  237 

V.  True  828 

V.  Willoughby  571 

V.  Wyatt  922,  923 

Fox  V.  Adams  592 

V.  Cook  863 

V.  Dougherty  127 

V.  Fox  112,  113,  119,  144,  146 

V.  Jones  679 

V.  Mackreth         180,  189,  105,  197, 
201,  206 
V.  Phelps  583 

V.  Storrs  312 

V.  Wright  188 

Foxworth  V.  White  197 

Fozier  v.  Andrews  900,  901 

Frail  v.  Ellis  236,  239 

Frampton  v.  Frarapton    509  c,  672,  673 

France  v.  Woods  443 

Francis  v.  Brooking  636 

V.  Clenion  570 

V.  Francis  453,  461,  904 

V.  Gower  558 

V.  Hazelrigg's  Executors  237 

V.  Wigzell  658,  662 

Franciscus  v.  Reigart  299,  310 

Franco  v.  Bolton  214 

V.  Franco  419,  633,  884 

Frank  v.  Frank  185 

Frank's  App.  429 


Ixvi 

INDEX   TO    CASES   CITED. 

Section 

Section 

Franklin  v.  Arnifield 

694 

737,  74« 

Frost  V.  Belmont 

214 

I".  Bank  of  England 

242 

P'rothinghani  v.  March 

602  r 

r.  Firth 

468 

Fry  V.  Capper 

671 

V.  Green       602  t,  602  dd, 

615,  618, 

v.  Fry 

487 

629,  771 

619,  915 

V.  Tapson 

404 

r.  Haves 

275 

Frye  c.  Porter 

357 

514,  517 

V.  Osijoo.l                  411,  499,  602  m 

v.  Shelbourne 

580 

Franklin  Bank  i:  Cooper 

179 

FuUager  v.  Clark 

167 

Franklyn,  Ex  parte 

456 

Fuller  V.  Bennett 

222 

Franks  c.  Price 

372 

V.  Dame 

214 

Frary  v.  Booth 

660 

V.  Johnson 

770 

FrauenfeUlt's  Estate 

640 

V.  Knight 

770, 

877,  884 

Frayser  v.  Rd.  Co. 

438 

V.  O'Neil 

779 

Frazer  v.  Bailie 

633 

V.  Redman 

481 

V.  Beville 

541 

V.  Wilson 

172 

V.  Moore 

862 

Fulton  V.  Gilmore 

922 

V.  Palmer 

432,  902 

V.  Whitney 

196 

Frazer's  Ex'rs  v.  Page 

476  a 

Fulton  Bank  v.  New  York  Coal  Co.  222 

Frazier  ;;.  Brownlow 

660 

Funk  V.  Lawson 

82 

V.  Center 

32,  661 

Furguson  v.  Smith 

654 

V.  Frazier                65, 

160, 

251,  255 

Furiam  v.  Saunders 

521 

V.  Smart 

918 

Furman  v.  Coe 

624,  914 

V.  Vaux 

918 

V.  Fisher 

82,  259 

Freake  v.  Cranefeldt 

558,  559 

Furness  v.  Caterham  Railway 

752 

Frederic  i\  Haas 

126,  132 

Furrin  v.  Newcombe 

160 

V.  Hatwell 

667 

Fursaker  v.  Robinson 

109,  111 

Freeland  v.  Pearson 

254,  258 

Fussell  V.  Dowding 

920 

Freeman  v.  Cook       184, 

540, 

541,  848, 

Fust,  Ex  parte 

457 

844,  927 

Futter  V.  Jackson 

826,  827 

v.  Curtis 

184 

Fyler  v.  Fyler     246,  466, 

847, 

849,  907 

V.  Fairlee      463,  821, 

826 

827,  905 

V.  Pole 

862 

V.  Flood 

670, 671 

V.  Freeman 

75,  77,  647 

G. 

V.  Harwood 

195 

V.  Kelly                 127 

1.33, 

137,  138 

Gabb  V.  Prendergast 

66 

V.  Mebane 

238 

Gabee  v.  Sneed 

232 

V.  Moore 

667 

Gabril  v.  Sturgis 

901 

V.  Parsley 

6-32,  683 

Gadsden,  Ex  parte 

312 

V.  Tathani 

85 

Gadsden  v.  Whaley 

86 

V.  Thompkins 

915 

Gaffee,  In  re 

653, 

670,  671 

Freemoult  v.  Dedire 

122 

Gage  V.  Dauchy 

679 

Freeport  v.  Bartol 

83 

V.  Rogers 

891 

Freer  v.  Lake 

82 

Gaillard  v.  Pardon 

361 

Freke  v.  Lord  Carbery 

395 

Gaines  v.  Chew            126, 

142, 

182,  183 

Frelick  v.  Turner 

618 

V.  Hennen 

183 

Freme  v.  Woods 

443,  914 

V.  Poor 

672 

French  i\  Barron 

904 

Gainus  v.  Cannon 

76,  127 

V.  Davidson 

507, 

508,  511 

Galbraith  v.  Elder 

538 

V.  French 

191,  299 

Gale  V.  Coburn 

299 

V.  Griswold  College 

907 

r.  Gale 

169 

V.  Harrison 

835 

V.  Harby 

127,  137 

V.  Hobson 

419, 

454,  851 

V.  Mensing 

602  aa 

V.  St.  George 

533 

Gale's  Petition 

275 

Freto  V.  Brown 

613 

Gallagher's  Appeal 

570 

Frey  v.  Frey 

462,  900 

Gallatian  ;-.  Cunningham 

200 

Freyer,  In  re               415, 

416, 

418,  890 

V.  Erwin 

218 

Frey  vogle  v.  Hughes  304, 310a 

,311,652 

Gallego  I'.  Att'y-Gen. 

724,  748 

Frickett  v.  Durham 

1.33 

V.  Gallego 

627,  643 

Frier  v.  Peacock 

730 

Galley  v.  Panther 

500 

Frith  V.  Cartland   433, 463,  835, 837, 863 

Galliers  v.  jMoss 

337 

Frost  V.  Beekman 

220,  221 

Gallion  v.  McCaslin 

218 

INDEX   TO    CASES   CITED. 


Ixvii 


Galloway  v.  Finley 

V.  Hamilton 
Galway  v.  Butler 
Ganiber  v.  Ganiber 
Gambril  v.  Gambril 

V.  Roberts 
Gann  v.  Chester 
Gannon  v.  Wiiite 
Gardenhire  v.  Hinds 
Gardiner  v.  Tyler 
Gardner  v.  Adams 

V.  Astor 

V.  Barker 

V.  Brown 

V.  Downes  276,  476  a 

V.  Fell 

V.  Gardner  347,  560,  598, 
6(36,  678,  680; 

V.  Heyer 

V.  Hooper 

V.  Marshall 

V.  Merritt 

V.  Ogden 

V.  Rowe  58, 

V.  Stevens 

V.  Walker 

V.  Weeks 
Gardner  Bank  v.  Wheaton 
Garey  v.  Whittingham 
Garfield  v.  Hatmaker 
Garfoot  v.  Garfoot 
Garforth  v.  Bradley 
Garland,  Ex  parte 

V.  Harrington 

V.  Loring 
Garner  v.  Dowling 

V.  Garner  38,  95,  109,  240, 
V.  Ger.  L.  Ins.  Co. 

V.  Moore 

t'.  Stroude 
Garnett  v.  Armstrong 

V.  Macon      225,  502,  598, 

Garniss  v.  Gardner     402,  463. 
Garnistone  v.  Gaunt 
Garnous  v.  Knight 
Garnsey  v.  Gardner 

V.  Mundy 
Garr  u.  Drake 
Garrard  v.  Fanchell 

V.  Lauderdale 


V.  Railroad  Co. 

V.  Tuck 
Garrett  r.  Carr 

V.  Garrett 

V.  Noble 

V.  Pretty 

V.  Wilkinson 
Garrick  v.  Tajdor 
Garrow  v.  Davis 


98,  100, 


120 


Section 

232 

234 

888 

677 

652,  554 

553 

238,  239 

102 

312,  648 

918 

69 

347 

118 

262 

922,  928 

871 

647,  660, 

',  795,  797 

66 

324 

636 

97 

203 

77,  82,  86 

360 

629 

277 

137 

903  a 

144 

121 

635,  640 

454 

438 

610 

2.59 

,  359,  370 

104 

438,  474 

891 

847 

794,  795, 

800,  801 

,  468,  471 

581,  605 

103 

247  a 

104 

603 

186 

585,  593, 

596,  597 

225,  810 

354,  861) 

468 

,  127,  836 

771 

512,  513 

144 

130,  139 

09 


Section 

Garson  v.  Green  232,  2-36,  237,  239 

Garth  v.  Baldwin         305,  315,  357,  358 

V.  Cotton  871 

V.  Townsend  254 

Gartland  v.  Mayatt  294 

Gartside  v.  Isherwood  178,  189 

V.  Radcliffe  183,  187 

Garvey  v.  McDavitt  386  a 

Garvin  v.  Williams  200 

Garwood  i>.  Eldridge  226 

Gary  v.  Colgiu  782 

V.  May  601 

V.  Whittingham  889 

Gascoigne  v.  Thwing  137 

Gaskell  v.  Chambers  206,  207 

V.  Gaskell  165,  262 

Gasque  v.  Small  187 

Gass  V.  Gass  126 

V.  Mason  194 

V.  Porter  783 

V.  Ross  748 

V.  Wilhite    384,  705,  715,  724,  728, 

730,  748 

Gassett  v.  Grout  627,  632 

Gaston  v.  Frankum  657 

Gaston's  Trust  821 

Gate  V.  Debrett  602  e 

Gateus  v.  Madderly  648 

Gates  V.  Jones  710 

Gault  V.  Baffin  677 

Gaunt  V.  Taylor  886,  888 

Gause  v.  Hale  361 

Gaves  v.  Hickson  441 

Gay  u.  Ballon  613 

V.  Edwards  863 

Gayden  v.  Gayden  426 

Gaylords  v.  Kelshaw  898 

Gazzam  v.  Poyntz  590,  592 

Geary  v.  Bearcroft  325 

Geddes  v.  Pennington  174 

Geddings  v.  Geddings  129 

Gee  V.  Gee  133 

V.  Liddell  96 

Genet  v.  Beekman  386  « 

V.  Talmadge  608,  611 

Gent  V.  Harris  636 

Gentry  v.  Law  172 

V.  McReynolds  664 

George  v.  Bank  of  England  86 

V.  Gold.sby  639 

V.  Howard  151 

V.  Lansley  511  c 

Georges  v.  Pye  836 

Gerard  Ins.  Co.  i\  Chambers  305 

German  v.  Gabbald  75 

German  Am.  Sem.  v.  Keifer  865 

German,  &c.  Assoc.  730 

German,  &c.  Congregation  v.  Rep- 

ler  732 

Geroe  v.  Winter  601 

Gerrard  v.  Gerrard  678 


Ixviii 


INDEX   TO   CASES   CITED. 


Section 
Gerrard  v.  Lauderdale  108 

Gerrish  r.  New  Bedford  Inst,  for 

Savings  86, 99 

Gerry  v.  Stimson  78,  133,  162 

Gest  V.  Flock  499 

Getman  ;•.  Beardsley  891 

c.  Getman  133 

Gevers  i:  Wright  367 

Geyer  v.  Branch  Bank  649,  651 

Giieen  v.  Osborn  556 

Gliiselin  r.  Ferguson  232,  238,  239 

Ghost  V.  Waller  402,  444,  463,  806 

Gibbons  v.  Baddall  236,  239 

V.  Gaunt  185 

V.  Maltyard  693,  700,  701 

V.  Taylor  445,  847 

Gibbs  V.  Cunningham      602  s,  780,  782 

V.  Guigiiard  262 

V.  Harding  672 

V.  Herring  421 

V.  Marsh        38,  248,  253,  284,  499, 

602  m 

V.  Rumsey    158,  159,  160,  507,  711 

V.  Smith  276 

Gibson  i\  Armstrong  151 

v.  Barbour  195 

V.  Bott  551,  915 

V.  Crehore  918 

V.  Foote  79,  147 

V.  Jeves  187,  195,  202 

V.  Jones  602 1,  602  x,  602  an, 

602  ee,  782 
V.  MeCall  720,  748 

V.  McCormick  562 

V.  Montford  308,  312,  315,  317 

V.  Kussell  189,  204,  210 

V.  Scudmore  605 

r.  Winter  328 

Gibson's  Case  240,  277,  780,  918 

Giddings  v.  Giddings  196,  538 

V.  Palmer  82 

Gidney  r.  Moore  171 

Gifford  V.  Bennett  828 

Gifford  V.  Hort  856 

V.  Manley  260 

Gift  V.  Anderson  602  dd 

Gilbert  v.  Bennett  117 

V.  Chapin  113,  251 

V.  Colt  72 

V.  Cooley  602  bb 

V.  Gilbert  142,  184 

V.  Lewis  648,  649 

V.  Overton  101,  102,  105 

V.  Sleeper  828,  863 

V.  Sutliff  918 
Gilbert's  App.  927 
Gilbertson  v.  Gilbertson  908 
Gilchrist  v.  Cator  634 
V.  Stevenson  100,  104,  879,  921 
Gill  V.  Att'y-Gen.  417,  422 
v.  Carmine                                 437  a 


Section 

312 

602  ee 

699 

924 

582,  772 

648,  649 

186 

591,  774,  779 

324 

602 

206 

33 

514 

694,  724,  728, 

733,  748 

Gilman  C.  &  S.  R.  R.  Co.  v.  Kelly  207 

Oilman  v.  Brown  232, 234,  235, 236, 237 

V.  Healey  129 

V.  McArdle  86 

Gilraore  i\  Johnson  172 

V.  Tuttle  918 

Gindrat  v.   Montgomery   Gas 

Light  Co.  511c 

Girard  Ins.  Co.  v.  Chambers  555 

Girard  Life  Ins.  Co.  v.  Chambers  386  a 


Gill  V.  Logan 

V.  Lyon 
Gillam  v.  Taylor 
Gillbrand  v.  Alexander 

V.  Goold 
Gillespie  v.  Burleson 

V.  Moore 

V.  Smith 

V.  Somerville 

Gillett  V.  Hickling 

Gillett  V.  Peppercorne 

V.  Stanley 

V.  Wray 
Gillman  v.  Hamilton 


Girard  Will  Case 
Girard,  &c.  v.  Philadelphia 
Gist  V.  Frazier 
Gitting  V.  Steel 
Gladding  v.  Yapp 
Gladdon  v.  Stoneman 
Gladstone  v.  Had  wen 
Glaister  v.  Hewer 
Glan3's,  Ex  parte 
Glass  t'.  Gilbert 

V.  Hulbert 

V.  Oxenham 

V.  Ramsey 

V.  Warwick 


697 

742, 748 

187,  192 

571 

150 

816,  818 

58 

144,  626,  628,  639 

58 

863 

167 

877 

894 

662 


Glasscock  v.  Glasscock 

V.  Minor 
Glaze  V.  Drayton 
Gleaves  i".  Paine 
Glegg  V.  Edmondson 
Glen  V.  Fisher 

V.  McKim 
Glengall  v.  Barnard 
Glenn  r.  Hill 

V.  Randall 
Glenorchy  r.  Bosville 
Gliddon  v.  Taylor 
Glidewell  v.  Shaugh 
Glissen  v.  Ogden 
Gloucester  v.  Wood 
Glover  v.  Alcott 

V.  Hare 

V.  Monckton 

V.  Stamps 

Glyn  V.  Locke 
Gochenauer  i'.  Froelick 
Goddard  v.  Carlisle 


238 

175 

231 

683 

869 

575,  576,  627 

415,  419,  420 

647 

869 

126 

357,  359,  369 

678 

126 

201 

112,  157 

678 

648 

315 

890  a 

597,  794 

511 

202 


INDEX  TO   CASES   CITED. 


Ixix 


Section 

GodJard  v.  Hapgood 

592 

V.  Pomeroy 

748 

V.  Snow 

213 

Godden  v.  Crowliurst 

386  6,555 

Godfrey  i-.  Dixon 

64 

V.  Faulkner 

452 

V.  Walker 

733 

Coding,  Ex  parte 

780 

Godolpliin  v.  Godolphin 

48 

248,  489 

Godsall  V.  Webb 

102,  105 

Godwin  v.  Younge 

2B2 

Goehring's  App. 

768 

Goepp's  App. 

128 

Going  V.  Emery         499, 

694, 

701,  720, 

724 

,  748,  766 

Gold  V.  Death 

222 

Golder  v.  Brassier 

284 

,  287,  499 

Golding  V.  Yapp 

94 

Goldsmid  v.  Goldsmid 

519 

Goldsmith  v.  Osborne 

602  0,  602  re 

V.  Swift 

545 

Goldstein  v.  Goldstein 

828 

Goleborn  v.  Alcoek 

218 

Golson  V.  Dunlap 

195 

Gomez  v.  Tradesman's  Bank 

82,  126, 

133,  322 

Goraley  v.  Wood 

432,  904 

Gooch  V.  Vaughan 

770 

Goochenaur's  Estate 

628,  639 

Good  V.  Cheesman 

693 

V.  Harris 

648,  651 

V.  McPherson 

744 

Goodale  v.  Mooney 

712 

Goode  V.  Comfort 

769 

Goodell  V.  Freed 

226 

Goodenough  v.  Goodenough 

871 

V.  Tremanondo 

451 

Goodere  v.  Lloyd 

157 

Goodhill  v.  Brigham 

511  b 

Goodhue  V.  Barnwell 

245,  863 

V.  Clark 

176  a,  928 

Goodinge  v.  Goodinge 

256 

Goodman  v.  Goodright 

379 

V.  Sayers 

185 

Goodrich  v.  Downes 

591,  592 

V.  Milwaukee 

804 

V.  Pendleton 

863 

V.  Proctor 

593, 

595,  602  9 

Goodright  v.  Hodges  126, 137,  139,  143 
V.  Swymmer  354 

I'.  Wells  13,  300,  302,  347 

Goods  of  Lady  Truro  93 

Goodson  V.  Ellison  269,  349,  351,  354, 
470  a,  883,  900,  901,  921,  922,  928 

Goodtitle  V.  Cummings  218 

V.  Funucan  530 

V.  Jones  17,  328,  349,  850,  355,  520 
V.  Knott  308 

V.  Woods  379 

Goodwin  v.  Gosnell  846 

V.  Mix  786 


Goodwin  v.  Moore 

V.  Rice 

Goodyear  v.  Rumbeaugh 
Gordon  v.  Adolphus 

V.  Frail 

V.  Gordon 

V.  Green 

V.  Preston 

V.  West 
Gore  i;.  Bowser 

V.  Gibson 

V.  Gore 
Gorge  V.  Chansey 
Gorge's  Case 
Gorham  v.  Daniels 
Goring  v.  BickerstafE 


Section 

633 

122 

676,  677 

516 

910 

107,  178,  185 

86 

754 

918 

260 

191 

379 

482 

144,  146 

299 

379 

V.  Nash  107,  108,  111,  367 

Gorsuch  V.  Briscoe  284 

Gort  V.  Att'y-Gen.  704 

Gosling  V.  Carter        501,  795,  801,  802, 

803,  805,  808 

V.  Gosling  389 

Goss  I'.  CahiU  678 

V.  Singleton     259,  273,  284,  602  m, 

858 

V.  Tracy  182 

Gossmour  v.  Pigge  184 

Gosson  V.  Ladd  312,  520 

Gott  V.  Cook  391,  508,  620 

Gough  V.  Andrews  579 

V  Boult  256,  863 

V.  Butte  119 

V.  Crane  110 

V.  Offley  822 

Gould  V.  Choppell  441,  770 

V.  Emerson  843 

V.  Gould  182,  228 

V.  Harris  918 

V.  Hayes  918 

V.  Hill  648 

V.  Lamb  312,  320,  598 

V.  Mather  499 

V.  Okeden  192 

Goulden  v.  Buckelew  602  /f 

Goulder  v.  Camm  648 

Gouldsworth  v.  Knight  412,  413 

Gouverneur  v.  Elmendorf  226 

V.  Titus  891 

Gove  V.  Brazier  562 

V.  Knight  ■  664 

V.  Learoyd  162 

Governesses'     Institute     v.     Rus- 

bridger  824,  903  a 

Governor  v.  Gridley  43 

Governor,  &c.  v.  Campbell  593 

Gower  v.  Eyre  477,  552 

V.  Grosvenor  359,  364,  373 

V.  Mainwaring  19,20,255,507,  510 

V.  Mead  564 

V.  Sternes  226 

Gowing  V.  Rich  149 


Ixx 


INDEX  TO    CASES   CITED. 


Section 

Gowland  v.  De  Faria  188,  8b7 

Grabowski's  Settlement  656  « 

Grace,  A'x  parte  196 

V.  Pliillips  508 

V.  Webb  555 

Gracey  v.  Davis  594 

Grati'i-.  Bonnett  386  o,  555 

V.  Castleman  225 

V.  De  Turk  254 

V.  Rohrer  143,  144,  162 

Graham  v.  Austin  419 

V.  Eirkenliead  Railway  870 

V.  Davidson  418,  419,  863 

V.  Donaldson  141 

V.  Dyster  243 

V.  Fitch  654 

V.  Fittz  785 

V.  Graham  367 

V.  King  602/,  602  bb,  602 Jf 

V.  Lambert  82,  98 

r.  Lee  388 

?;.  Little  92,  194,  785 

V.  Londonderry  532 

V.  Long  49 

V.  Maxwell  72 

V.  Pancoast  194 

V.  Stewart  359 

V.  Torrance  863 

Gram  v.  Prussia  787 

Graiiberry  ;•.  Cranberry  272,  918 

Grandom's  Estate  699 

Grange  v.  Tiving  52 

Granger,  Ex  parte  228 

V.  Basset t  545,  556 

Grangier  v.  Arden  98 

Grant,  In  re  37 

i;.  Campbell  905 

V.  Dver  518 

V.  Grant  72,  647 

V.  Hook  598,  795,  798 

V.  Lunam  256,  507 

V.  Mills  217,  236,  239,  828 

V.  Quick  72 

Grantham  v.  Hawley  67 

Granville  »'.  McNeale  294,  499,  502 

Grapengether  v.  Fejervary        232,  239 

Gratwick's  Trust,  In  re  254,  668 

Gratz  V.  Cohen  100 

Gravcnor  r.  Hallam  706 

Graver's  Appeal  891,  894 

Graves  v.  Allen  65 

i\  Dolphin  386 

V.  Dugan  133 

V.  Graves  116,  137,  162 

V.  McCall  232,  239 

V.  Spier  211 

V.  Strahan  266,  453 

V.  Ward  135 

V.  Waterman  195 

V.  White  171 

Graves's  Appeal  463,  468,  471 


Gray,  Ex  paHe  332 

V.  Bridgeforth  380 

V.  Chaplin  885 

V.  Corbit  126,  321 

V.  Dougherty  892 

V.  Fox  453,  459 

V.  Gray  96,  112,  255,  564 

V.  Haig  440,  821 

V.  Henderson  499,  501 

V.  Hill  593 

V.  Howard  602  j9, 602  q,  602  r,  602  if 

V.  Lynch  343,  459,  914 

V.  Mansfield  204,  206 

V.  Mathias  214 

V.  Portland  Bank  545 

V.  Shaw  774 

V.  Thompson  468 

V.  Ulrich  831 

V.  Viers  780 

V.  Woods  180 

Gray's  Estate  628,  639 

Grayburn  v.  Clarkson  489 

Graydon  v.  Graydon  518 

V.  Hicks  513,  518 

Greason  v.  Keteltas  528,  530 

Great    Eastern    Railway    Co.    v. 

Turner  65 

Great  Falls  v.  Worster  72 
Great  Luxembourg  R.  Co.  v.  Ma- 

guay  207,  430 
Great  Northern  Railway  Co.,  Ex 

parte  455 

Greatly  v.  Noble  C58,  835 

Greaves,  Ex  parte  267 

V.  Simpson  358 

Greedy  v.  Lavender        629,  633,  903  a 

Green,  Ex  parte  332,  616,  618 

V.  Allen  713,  721,  731,  748 

V.  Beatty  3-30 

V.  Belcher  581 

V.  Black  well  550 

V.  Borland  286 

V.  Carlil  667 

V.  Gates  76 

V.  Claiborne  768 

V.  Cook  184 

r.  Crockett  238 

V.  Demoss  238,  239 

V.  Dennis  42,  748 

V.  Dietrich  133,  137 

?•.  Drummond  134 

r.  Ekins  362,  616,  622 

?•.  Folgham  67 

V.  Green  322,  672,  784 

V.  Howard  255,  257,  699 

V.  Lowe  560 

V.  Marsden  112,  113 

r.  McBeth  511 

V.  Morris  186 

V.  Morse  600 

V.  Mumford  331 

V.  Otte  636 


INDEX   TO   CASES   CITED. 


Ixxi 


Section 
Green  v.  Pi  got  480 

V.  Pledger  827 

V.  Putney  918 

V.  Rutherforth  42,  743 

V.  Scranage  680 

V.  Smith  38,  238 

V.  Spicer  386,  555 

V.  Stepliens  372 

V.  Thompson  187,  18'J 

V.  Trieber  592 

V.  Winter        206, 428,  526, 910, 916 
Green's  Estate  918 

Greene  v.  Sprague  Manf  g  Co.  591 

Greenfield  v.  Vason  815  a 

Greenfield's  Estate   77, 98, 194, 202, 210 
Greenhill  v.  Willis  438 

Greenhouse,  Ex  parte  275,  733 

Greening  v.  Fox  918 

Greenlaw  v.  Kent  129 

Greenleaf  V.  Queen  602  ;,  602  m,  602  p, 


602  dd. 

780,  782 

Greenough  v.  Welles 

248,  500 

Greenslade  v.  Dare 

35 

Greenville  Academy 

42 

Greenwell  v.  Greenwell 

613, 

616,  619 

Greenwood  v.  Coleman 

312,  320 

V.  Roberts 

385 

V.  Wakeford       268, 

276, 

280,  282, 

460,  509,  848, 

884, 

901,  924 

Greer  v.  Baughman 

137 

V.  McBeth 

783 

Greetham  v.  Colton 

789, 

802,  803 

Greeville  v.  Browne 

570 

Gregg  r.  Coates            121 

,477 

540,  552 

V.  Currier 

414 

Gregory  v.  Gregory     228,  229, 416, 418, 

421 

V.  Henderson 

298, 

306,  307 

V.  Lockyer 

663 

V.  Marks 

639 

Greisley  v.  Chesterfield 

650 

Grenfell  v.  Dean 

69 

V.  Girdlestone 

866 

Grenville  Academies,  Ex 

parti 

282 

Gresley  v.  Monsley 

202,  869 

Greswold  v.  Marsham 

347 

Grey  v.  Grey        54,  126, 

143, 

145,  146, 

147, 

151,  161 

Gridley  v.  Andrews 

569,  570 

Grierson  v.  Eyre 

871 

Grieves  v.  Case 

701 

Grievson  v.  Kirsopp     248, 249 

,  250, 258 

Griflin,  Ex  parte           404, 

411, 

417,  441 

I'.  Barney 

591,  918 

V.  Blanchard 

237 

V.  Camack 

232,  238 

V.  De  Veulle 

189,  193 

V.  Doe 

602/- 

(.'.  Fleming 

554 

I'.  Grail  am     384,  700, 

724, 

731,  748 

V.  Griffin 

190,  538 

Griffin  v.  Macauley 

V.  Marine  Co. 

V.  Nanson 
Griffith  V.  Buckle 

V.  Chew 

V.  Evans 


Section 

416,  420,  526 

602  p,  602  V,  782 

181 

351 

244 

112,  251 


V.  Griffith      51,  218,  222,  223,  240, 

277,  648 

V.  Morrison  550 

V.  Pownali  385 

V.  Robins  189,  190,  210 

V.  Spratley  183,  187,  188,  192 

Griffith  Flood's  Case  739 

Griffiths  V.  Cape  748 

V.  Porter  402,  418,  849,  931 

V.  Pruen  272 

V.  Ricketts  593 

V.  Vanheythuysen  834 

V.  Vere  395 

Grigby  v.  Cox  654,  667 

V.  Hair  238 

Griggs  V.  Staples  213 

Grimball  v.  Cruse  476  a,  918 

Grimes  v.  Harmon      694,  713,  728,  729, 

730 

Grimke  v.  Grimke  248 

Grimshaw  i'.  Walker  592 

Grimstone,  Ex  parte  605,  611 

Grinell  v.  Adams  590 

Grisby  v.  Mousley  229 

Grissom  v.  Hill  737,  748 

Griswold  i'.  Bigelow  511  c 

V.  Chandler  463,  468 

V.  Penniman  639 

V.  Perry  784,  785 

Groesbeck  r.  Seeley  126,  136,  142 

Grolick  v.  Ward  214 

Groom  v.  Booth  793,  884 

Grooves  v.  Rush  75 

Groschen  v.  Page  592 

Gross  V.  Reddig  678 

Grosvenor  v.  Day  602  hh 

V.  Sherratt  194 

Groton  v.  Ruggles  262 

Grout  V.  Van  Schoonhover  3H5 

Grover  v.  Wakeman  590 

Groverman  v.  Diffenderffer       627,  645 

Groves  v.  Clark  145 

V.  Groves         126, 131, 137, 140, 141 

V.  Perkins  185,  645 

V.  Price  438 

V.  Wright  547 

Grovesnor  v.  Cartright  464 

Growing  v.  Behn  239 

Grumbles  v.  Grumbles  864 

Grute  V.  Locroft  637 

Gubbins  v.  Creed  427 

Gude  v.  Worthingtoa  249 

Guerrant  v.  Fowler  71 

Guerreiro  v.  Peile  243 

Guest  V.  Farley  299 


Ixxii 


INDEX   TO   CASES   CITED. 


Section 

Guibcrt's  Trust  ^07 

GuiiMy's  Case  694 

Guikl  i:  Guild  71,  627,  631 

Cuill  V.  Northern,  et  al.  794 

Guillam  r.  Holland  584 

Guion  ('.  Doherty  680 

V.  Mel V  in  282 

V.  Pickett  248,  290,  473 

Gulick  V.  GuUck  104 

GuUin  i:  GuUin  630 

GuUvver  v.  Kay  324 

r.  Wicket  37y 

Gullv  V.  Cregoe  112,  117 

V.  Hall  646 

Gumbert's  App,  159 

Guiin  r.  Barrow  330 

Gunnel!  v.  CockeriU  828 

V.  Whitear  433 

Gunter  v.  Gunter  348 

V.  Jones  602  p,  602  v 

V.  Thomas  184 

Guphill  V.  Isbell  330 

Guth  V.  Guth  672,  673 

Guthrie  v.  Gardner     126,  143,  144,  149 

Gutzwiller  v.  Lackman  596 

Guy  V.  Dormer  511  c 

V.  Hancock  602  ee 

V.  Mcllree  589 

Guyer  v.  Maynard  308,  765 

Guvton  I'.  Shane  411,  900 

GwUliams  v.  Howell  121,  414 

Gwinn  v.  Williams  200 

Gwynn  v.  Gwynn  160 

Gwynn  v.  Heaton  187,  188 

Gyett  V.  Williams  570 


H. 

Haberdashers'  Co.  v.  Att'y-Gen.      900 

Habergham  v.  Vincent  13,  03,  151, 

347,511  b 

Habersbon  i-.  Vardon 

Hackman  v.  MaGuire 

Hackney  v.  Brooman 

V.  Butts 

Haddelsey  v.  Adams 
Hadden  r.  Chorn 

Haddock  v.  Perham 

Hadley,  In  re 

V.  Hopkins  Academy 


701,  710 

437  a 

86,  99 

200 

371 

748 

539 

272,  291 

700,  743, 

744,  748 

189 

237 

128 


V.  Latimer 

V.  Pickett 

V.  Stuart 

Hadow  V.  Hadow  112, 117, 118, 612, 620 

Haffey  v.  Birchetts  238 

Hafner  v.  Irwin  590,  592 

Ha  cell  V.  Currie  827 

Hagler  v.  xMcCombs  918 

Halin  V.  Piudell  782 


Section 

Haigh  V.  Kay 

85, 

162,  165,  226 

Haigood  v.  Wells 

618 

Hain  v.  Robinson 

75 

Haines  r.  Ellis 

645 

V.  O'Connor 

141 

Hake  v.  Fink 

639 

Halcott  V.  Morkant 

137 

Haldenby  v.  Spofford 

768,  877 

Hale  V.  Burrow  dale 

451 

V.  Home 

152 

V.  Lamb 

107,  110,  111 

V.  Lay  ton 

75 

V.  Penn 

390 

V.  Stone 

647 

Haley  v.  Bannister 

613,  619 

;;.  Bennett 

232 

Haley  burton  v.  Kershaw 

56-^ 

Haltbrd  v.  Stains 

150,  397,  584 

Hall,  In  re 

846 

V.  Bumstead 

559 

V.  Carter     416, 

421, 

578,  580,  581, 
584 

V.  Congdon 

126 

V.  Coventry 

872 

V.  Culver 

490 

V.  Gushing 

262, 

268,  272,  574 

V.  Denison 

591,  602 

r.  Dewes 

344,  414,  492 

V.  Doran 

141,  148 

V.  Franck 

412 

V.  Hall 

84, 

104,  147,  636 

V.  Hallett 

202,  894 

V.  Harris 

602  dd,  843,  877 

V.  Hill 

632 

V.  Hugonin 

633 

V.  Irwin 

500 

V.  Jones 

232,  414 

V.  Laver 

894,  907 

V.  Livingston 

226 

V.  Lock 

884 

V.  Maccubbin 

238 

V.  May 

294, 

340,  495,  505 

V.  McLain 

639 

V.  Otis 

828 

V.  Palmer 

103 

V.  Read 

184 

V.  Sayre 

649 

V.  Sprigg 

126 

V.  Sullivan  R.  R. 

Co. 

756,  757, 
758,  761 

V.  Timmons 

170,  849 

V.  Towne 

602  p,  602  V 

V.  Vanness 

129 

V.  Waterhouse 

656 

V.  Williams,  et  al 

386  6 

V.  Wilson 

918 

V.  Young 

126,  132,  639 

Hallack  v.  Smith 

236,  238,  239 

Hallett  V.  Collins 

228,  230 

V.  Hallett 

576 

V.  Thompson 

386  a,  555,  682 

INDEX   TO    CASES   CITED. 


Ixxiii 


Section 

Halliburton  )•.  Leslie  5'2 

Hal'-day  r.  Hudson  151,  152 

V.  Overton  357 

V.  Sumnierville  571 

Halmon's  Ai)peal  900 

Halsey  r.  Halsey  636 

V.  Tate  864 

V.  Whitney  592,  593 

Halstead  v.  Bank  of  Kentucky  218,  219 

Haly  V.  Bannister  395 

Ham  V.  Hani  412 

Haniherlin  v.  Terry  160,  182 

Hambrooke  v.  Simmons  87 

Hamer  v.  Tilsley  477,  552 

Hamersley  v.  De  Biel  208,  368 

V.  Lambert  64 

V.  Smith  310  a,  MQ,  652,  65:5 

Hamerton  v.  Whittoa  367 

Hamet  v.  Dundass  187 

Hamilton  v.  Bishop  647,  651 

V.  Buckminster  766 

V.  Crosby  511  c,  785 

V.  Fowlkes  239 

V.  P>ye  276,  280 

V.  Grant  855 

V.  Hector  672 

V.  Houghton        585,  594,  595,  597, 

600 

V.  Lubukee  602  p 

V.  Mills  626 

V.  Mound  City  M.  L.  L.  Co.      217 

V.  Royce  222 

V.  Watson  179 

V.  Wright  197,  427,  904 

Hamley  v.  Gilbert  612,  620 

Hamlin  v.  Hamlin  324 

Hammatt  v.  Emerson  171 

Hammerston's  Case  298 

Hammond  v.  Granger  287 

V.  Hammond  459 

V.  Hicks  863 

V.  Messenger  859 

r.  Neame  117,118,612,620 

V.  Walker  826 

Hamnett's  Appeal  127 

Hampden  v.  Hampden  183 

V.  Miller  232 

V.  Rice  704,  748 

Hampshire  v.  Bradley  900 

Hampson  v.  Bramwood  901,  903  a 

V.  Fall  126 

Hampstead  v.  Johnson  592 

Hampton  v.  Spencer  82,  84,  85 

Hanbury  v.  Kirkland  261,  417,  418, 

419,  466,  509 

V   Spooner  272 

Hanby  v.  Roberts  573 

Hanchett  v.  Briscoe  669,  850 

Hancock  v.  Minott  562,  571 

V.  Titus  127 

Hancom  v.  Allen  444,  455 


Section 

Handick  v.  Wilkes 

361 

Handley  v.  Davies 

903  a 

V.  Lyons 

232 

V.  Snodgrass 

462,  468 

Handlin  v.  Davis 

197 

Hands  v.  Hands 

250,  258 

Hane  v.  Vandeusen 

237 

Hanley  v.  Downing 

660,  662 

Hannah  v.  Carrington 

602  h,  602  /, 

602  m,  602  dd 

V.  Hodgson 

201 

Hanne  v.  Stevens 

881 

Hannum  v.  Spear 

598,  795 

Hansen  v.  Berthelsen 

76 

Hanson  v.  Beverly 

799,  808 

V.  Chapman 

618 

V.  Edgerly 

179 

V.  First  Pres.  Church 

137 

V.  Jacks 

891 

V.  Keating 

633 

V.  Miller 

639,  643 

V.  Worthington     261, 

262,869,  877 

Hapgood  V.  Perkins 

441,  444 

f.  Rout 

499 

Happy  V.  Morton 

733 

Harbin  v.  Darby 

904 

Harbison  v.  Lemon 

191 

Harcourt  v.  Harcourt 

601 

V.  Knowle 

218 

V.  White 

869 

Hardcastle  v.  Fisher 

590,  600 

Harden  v.  Darwin  &  Pulley  48, 126 

Harden  v.  Parsons  416,421,441,453, 850 
Hardenburgh  v.  Blair  386 

Harder  v.  Harder  126,  137,  138 

Hardin  v.  Baird  82,  98 

Harding  v.  Glyn         112,  248,  249,  250, 
251,  256,  258,  699,  714, 


V.  Handy 

189,  190 

V.  Hardrett 

220,  828 

V.  Larned 

453,  610 

V.  Randall 

171 

Hardingham  v.  Nichols 

219 

Hardman  v.  Ellamer 

219 

Hardwick  v.  Mynd    402, 

495, 

503,  779, 

795, 

804 

806,  867 

V.  Vernon 

821,  863 

Hardy  v.  Boaz 

677 

V.  Caley 

246,  907 

V.  Call 

891 

V.  Metropolitan  Land  Co. 

444 

V.  Reeves 

837,  862 

V.  Simpson 

590 

V.  Skinner 

590,  591 

Hare  v.  Sherewood 

226 

Harford  v.  Baker 

680 

V.  Lloyd 

835 

V.  Furrier 

122 

Hargreaves  ik  Mitchell 

601,  863 

Hargthorpe  i\  Milf'orth 

421 

Harinckell  v.  Orndor£E 

602  n 

Ixxiv 


INDEX   TO    CASES   CITED. 


Section 

llarker  v.  Reilly 

160 

Harkin  r.  Darby 

432 

Harkkader  v.  Leily 

589 

Harlan  v.  Brown 

788 

Ilarland  v.  Binks 

593 

r.  Trigg 

112,  118,  116 

Harland's  Appeal 

918 

liarley  r.  Harley 

626 

('.  Platts 

311 

Harmon  r.  Carver 

602  r 

Hanuood  v.  Oglander 

13,  347,  5i>3, 
860,  872 

Harnard  v.  Webster 

847 

Harnett  v.  Maitland 

477,  552 

V.  McDougall 

670 

Harpending  v.  Dutch  Church              45 

Harper  v.  Archer 

127 

V.  Harper 

75 

V.  Hayes 

770,  780 

i;.  Munday 

901 

V.  Phelps 

113, 

116,  251,  253 

V.  Straws 

275 

V.  Williams 

239 

Harrington  i\  Brown 

195,  205,  428 

V.  Duchattel 

214 

V.  Erie  County  Sa 

vin 

?s  Bank     195 

Harris  v.  American  Bible 

Society    715, 

748 

V.  Barnett 

76,  77,  83 

?-.  Carter 

171 

v.  Collins 

828 

V.  Dole 

680 

V.  Du  Pasquier 

711 

V.  Fly 

569,  570,  576 

V.  Haines 

109 

V.  Harlan 

237 

V.  Harris 

58, 

275,  279,  400, 

602  aa,  660,  931 

V.  Ingledew 

539,  595 

V.  Martin 

918 

V.  McBane 

873 

V.  Mclntyre 

126,  141 

V.  Mott 

654,  656 

V.  Norton 

221 

V.  Pepperell 

186 

890  rt 

V.  Poyner 

451,  552 

V.  Pugh 

304 

V.  Roop 

214 

V.  Slaght 

715,  716 

V.  Sumner 

591 

V.  Taylor 

642 

V.  Tremenheere 

202,  206 

V.  Tyson 

180 

V.  Union  Bank 

126 

V.  Williamson 

171 

Harrisburgh  Bank  v. 

Tyl 

er  127,  133, 
137,  138 

Harrison  ??.  Andrews 

640 

V.  Asher 

929 

V.  Battle              G02j 

,602/,  602  # 

Section 
Harrison  v.  Bos  well  862 

V.  Brolaskey  652,  653,  864 

V.  Porth  222 

V.  Poster  451 

V.  Graham    261,  402,  416,  419,  421 
V.  Guest  187,  195 

V.  Gurney  72 

V.  Harrison    94,  248,  251,  255,  379, 
380 
!'.  Holiins  855 

V.  Howard  226 

r.  McMennomy  77 

V.  Mock  209,  596,  890 

V.  Naylor  866,  372 

V.  Prise  877,  929 

V.  Randall  476 

V.  Rowan  475 

V.  Rowley  272 

V.  Smith  828 

V.  Stewardson  873,  885 

V.  Thexton  440 

V.  Warner  891 

Harrison's  Trusts,  Ee  275 

Harrod  v.  Fountleroy  229 

Harrold  v.  Lane  126,  129,  206 

Harrop  v.  Howard  670 

Harsliman  v.  Lowe  586 

Harston  r.  Tenison  863 

Hart  V.  East  Union  Railway  752 

V.  McFarland  590 

V.  Middlehurst  361 

V.  Stephens  640 

V.  Ten  Eyck  847 

V.  Tribe  112,  117,  620,  623 

Hart's  Ai)peal  ^63 

Hartga  v.  Bank  of  England  242 

Hartley  v.  Hurle  310,  649 

Hartman  v.  Dowdell  640,  641 

Hartman's  Appeal  282 

Hartopp  V.  Hartopp  201 

Hartshorne  i'.  Nichols  714 

V.  Nicholson  700,  729 

Hartwell  v.  Hartwell  214 

Hartzell  v.  Brown  900 

Harvard  College  v.  Amory  456 

V.  Soc.  for  Promoting  Theol. 

Education  724,  735,  739 

Harvey  v.  Alexander  109 

V.  Ashley  34 

V.  Aston        512,  514,  515,  517,  518 

V.  Cook  185 

y.  Cubbedge  815  6,820  a 

V.  Gardner  75,  260 

V.  Harvey  451,  532,  614,  616, 

647,  885 
V.  Ledbetter  126 

V.  Mix  589 

V.  Mount  187,  189,  192 

V.  Pennybacker  133,  137 

Harwood  v.  Fisher  640 

V.  West  112 


INDEX   TO    CASES   CITED. 


Ixxv 


Section 

Hasell,  Ex  parte 

865 

V.  House 

765 

Haskell  v.  Hervey 

863 

Haskill  V.  Freeman 

95 

Haslen  v.  Kean 

254 

Hassanclever  v.  Tucker 

570,  571 

Hassard  v.  Rovve 

606 

Hassel  v.  Hassel 

570 

Hastie  &  Silver  v.  Aiken 

863 

Hastings  v.  Baldwin 

602 

V.  Belknap 

592 

V.  Drew 

242 

v.Ovd 

104 

Hatcli  I'.  Hatch 

195,  200 

V.  Smith 

585 

Hatcliell  V.  Eggleso 

633 

Hatcher  v.  Hatcher 

232 

''.  Massey 

815  rt 

Hatcliett  V.  McNamara 

769 

Hatfield  v.  Montgomery 

228 

Hathaway  v.  Hathaway 

121 

Hathorn  v.  Maynard 

815  c 

Hathorne  v.  Root 

920 

Hathornthwaite  v.  Russell 

816,  819 

Hatton  V.  Weems 

910 

Haughton  v.  Haughton 

515 

Hault  V.  Townshend 

708 

Mauser  v.  Lehman 

420,  421 

V.  Shore        598,  794,  795 

797,  798 

Havers  v.  Havers 

818,  819 

Haviland  v.  Bloom 

627 

V.  Myers 

631,  632 

Hawes  v.  Wyatt 

192 

Hawken  v.  Bourne 

486 

Hawker  v.  Hawker 

308,  315 

Hawkin's  Appeal 

200 

Trust,  In  re 

272 

Hawkins  v.  Barney 

855 

V.  Ciiapman                  314 

866,  869 

V.  Chappell 

427,  771 

V.  Gordon 

86 

V.  Hawkins 

843 

r.  Kemp             273,290,502,5116, 

602  /),  800 

V.  Luscombe 

309,  310 

V.  May                  602/  602  m,  602  p 

V.  Obeen 

336 

V.  Obin 

641 

Hawksley  v.  Barrow  668 

Hawley  v.  Cramer     195,  197,  202,  205, 

228,  480 

V.  James         72,  117,  160,  240,  312, 

324,  380,  396,  397,  398,  404, 

409,  511,  562,  583,  779,  910 

V.  Ross  282,  341 

Hawtayne  i\  Bourne  486 

Hawthorne  t'.  Browne  128 

Haxall  V.  Shippen  553 

Haxton  v.  Corse  396,  398 

Hay  V.  Master  112 

V.  Palmer  556 


Haydel  v.  Hurck 
Hayden  v.  Bucklin 

V.  Stuart 
Haydon  v.  Stone 
Haye  v.  Brewer 
Hayes,  Ex  parte 

V.  Bay  ley 

V.  Doane 

V.  Goode 

V.  Hayes 

V.  Heidelberg 

V.  Hollis 

V.  Horine 

V.  Jackson 

V.  Kershaw 

V.  Kindersley 

V.  Kingdome 

I'.  O telly 

V.  Tabor 

V.  Ward 
Hayne  v.  Hayne 
Haynes  v.  Forshaw 

V.  Redington 
Haynes  worth  v.  Cox 
Hays  V.  Jackson 

V.  Quay 

('.  Reger 

Hayter  v.  Trego 
Hay  ton  v.  Wolfe 
Hay  ward  v.  Cope 

V.  Hay  ward 

V.  Ovey 
HayAvood  v.  Craven 

V.  Ensley 
Hazard  i'.  Irwin 
Hazel  V.  Hogan 

V.  Woods 


Section 

511a,  910 

855 

238 

863,  865 

562 

617,  618,  623 

584 

590 

229,  863 

380 

596 

189 

232 

94,  562 

97,  98,  109 

146,  147 

136,  146,  151,  161 

921 

299 

72,  210 

183 

809,  811 

455 

511a 

94,  562 

82,  139 

79 

722,  729,  731 

264 

179 

639,  642,  644 

878 

748 

75 

171 

505 

505 


Hazeltine  v.  Fourney  •  828 

Hazelton  v.  Valentine  440 

Heacock  v.  Coatesworth  135 

V.  Fly  184 

Head  v.  Egerton  219 

r.  Head  672,  673 

r.  Providence  Ins.  Co.  44 

V.  Teynham  878 

Heager's  Ex'rs  538 

Healey,  Iti  re  636 

Healy  v.  Alstoi  347 

V.  Rowan  34 

Heap  V.  Tongue  185 

Heard  v.  Eldredge  545,  918 

Heardson  v.  Williamson  312,  317 

Hearle  v.  Botelers  239 

V.  Greenback     33,  48,  52,  324,  489, 

615 

Hearn  v.  Crutcher  602 

V.  Hearn  843 

Hearns  v.  Savage  918 

Heartley  ;;.  Nicholson  96 
Heath  y.  Bishop                        386  a,  555 

V.  Erie  R.  R.  Co.  876,  877 


I XX  VI 


INDEX   TO    CASES   CITED. 


Section 
Heath  v.  Heath  628,  632 

V.  Henly  863 

V.  Knapp  336,  337 

V.  Lears  555 

V.  Lewis  516 

V.  Page  129 

V.  Peroival  878 

V.  Slocum  127 

Ileathcote  v.  Ilulme  468,  470 

r.  Paignon  187 

Heathraan  v.  Hall  647,  648 

Heath's  Appl.  181 

Heatlcv  v.  Finster  221 

2-.  Thomas  5116,657,662 

Heaton,  Ex  parte  454 

Matter  of  610 

V.  Hassell  635 

V.  Marriott  416 

Hehhlethwait  i'.  Cartwright  678 

Hecht  v.  Slaney  865 

Heck  V.  Clippenger  647,  648,  651 

Heckert's  Appeal  918 

Heilges  V.  Kicker  528,  769 

Ilefiferman  f.  Addams  511c 

Heighe  v.  Littig  546 

Heighington  v.  Grant  471,  902 

Heighten  v.  Grant  903  a 

Heilner  i-.  Imbrie  218 

Heiskell  v.  Powell  126 

Heist  V.  Baker  232 

Helan  v.  Russell  701 

Helfensteine  v.  Garrard  299 

Hellesjas  i:  Hellegas  602 1 

Hellman  v.  McWilliams       86,  104 

Hellmau's  Will  927 

Helm's  Ex'r  v.  Rogers  863 

Helmey  v.  Heitcamp  602  ff' 

Helms  v.  Franciscus  627,  631,  636,  645 
Hem  V.  Rushowski  602  hb 

Hemenway  v.  Hemenway         547 

Hemmer  v.  Cooper  173 

Hemmings  ?•.  Munckly       514,  515,  517 

Hemmingwav  v.  INIathews  640 

Hempfield  R'.  R.  Co.  v.  Thornbury  232 

Hemphill's  Appeal    440,  456,  459,  460, 

465,  918 

Estate 

Hempstead  v.  Hempstead 

Henchman  v.  Att'y-Gen. 

Henderson  i'.  Atkins 

V.  Burton 


V.  Cross 
V.  Downing 
V.  Henderson 
-V.  Hill 
V.  Hoke 
V.  Hunter 
V.  Kennicott 
V.  Mclver 
V.  Vaulx 
V.  Warmack 


918 
126 
329 
576 
232 
152 

590,  591 

100 

300,  312,  815  rt 

126,  133 
812,  744,  748 
580 
912 
541 
127 


Sectioa 

Henderson's  Appeal  589 

Hendley  v.  Westmeath  672 

Hendrick  v.  Hopkins  191 

Hendricks  v.  Nunn  166 

V.  Robinson  428 

Hendrickson  v.  Deeow  730,  733 

V.  Hendrickson  865 

Heneke  v.  Floring  137 

Hengst's  Appeal  416,  417 

Henkle  i'.  Royal  Ins.  Co.  226 

Henley  v.  Axe  188 

V.  Cook  185 

V.  Phillips  900 

V.  Stone  873 

Hennershotz's  Estate  154 

Hennessey  v.  Bray  265,  846 

i;.  Western  591,  592,  599 

Henry  v.  Dilley  676 

V.  Doctor  282 

V.  Morgan  222,  330 

V.  Raiman  202 

V.  Smith  660 

Henry  County  v.  Winnebago    230,  728 

Henschel  I".  Mamero  171 

Henshaw  v.  Morpeth  694 

V.  Sumner  686 

Hensman  v.  Hackney  724 

Henson  v.  Kinard  98 

Ilenvell  v.  Whittaker  670 

Hepburn  ?-.  Dunlop  173 

r.  Snyder  232 

Hepburn's  Appeal  652,  899 

Plerbergham  v.  Vincent  92 

Herbert  v.  Blunden  359 

v.  Hanrick  782 

r.  Herbert  477 

V.  Lownes  182 

V.  Scoffield  232 

V.  Smith  195 

Hercy  v.  Dinwoody  867,  865 

Hereford  v.  Adams  698,  699,  725 

V.  Ravenhill  461 

Heriot's  Hospital  v.  Ross  744,  907,  910, 

914 
Hermstead's  Appeal 
Herndon  v.  Pratt 
Heme  v.  Meeres 
Heron  v.  Heron 
Herr's  Appeal 

Estate 
Hertell  v.  Bogert 
Hervej'  v.  Audland 

Hesketh  v.  Murphy 

Hess  V.  Dean 


187. 


Hess's  Estate 
Hester  v.  Hester 

V.  Wilkinson 

Heth  V.  Riclimond 
Hetzel  V.  Hetzel 
Heugli  V.  Jones 
Heuser  v.  Harris 


918 

858 

195,  428 

137,  201 

647 

195,  428 

225,  814 

111 

699 

779 

468 

500  V,  602,  894 

438,  439,  618 

458,  836,  847 

254,498,  511a 

680 

699,  748 


INDEX    TO    CASES    CITED. 


Ixxvii 


Section 

Hewes  v.  Dehon 

562,  5(j() 

Hevvett  v.  Foster 

419 

424,  902 

V.  Hewett 

249 

255,  492 

V.  Wotton 

693 

Hewit  V.  Hewit 

508,  510 

Hewitt  V.  Crane 

201 

V.  Loosemore 

236 

V.  Morris 

550,  551 

Heyer  ?'.  Burger 

674 

Heysliam  v.  Heyshatn 

614 

Hevwood  0.  Buffalo 

660 

Hibbard  I'.  Lamb         19,275, 

497,  503, 

504,  721 

Hibbert  v.  Cook 

477, 

652,  913 

V.  Hibbert 

123,  907 

Hichens  v.  Kelly 

873 

Hickens  v.  Congreve 

885 

Hickey  v.  Burt 

330 

V.  Young 

137 

Hickley  v.  Farmers',  &c. 

Bank         585 

Hicklins  v.  Boyer 

552 

Hickman  v.  Stewart 

195 

Hickman  v.  Upsall 

929 

Hicks  V.  Hicks 

851 

V.  Sallitt 

871,  872 

V.  Wrench 

899 

Hickson  v.  Fitzgerald 

271,  898 

Hidden  v.  Hidden 

448 

V.  Jordon 

75,  134 

Hide  V.  Haywood 

909,  910 

Hieronymous  v.  Mayhall 

861 

Higbee  i'.  Rice 

302 

Higginbottom  v.  Hulme 

555 

V.  Peyton 

86 

Higgins  V.  Joyce 

178 

Higginson  v.  Barneby 

275 

High  V.  Batte 

218, 

221,  239 

Highway  v.  Bauner 

362 

Hildreth  v.  Eliot 

104 

Hilenian  v.  Bouslaugh 

858 

Hill,  Ex  parte 

207,  555 

V.  Anderson 

53 

V.  Atkinson 

480 

V.  Brown 

431 

V.  Buckley 

770 

V.  I'>urns 

705,  724 

V.  Chapman 

614 

V.  Cook 

152 

V.  Davis 

426 

V.  Edmonds 

633 

V.  Fogg 

242 

V.  Gomrae 

846 

V.  Gray 

173 

Hill        87,  94,  375,  627,  645,  767 
V.  Josselyn  411 

V.  London  116,  151,  152,  158 

V.  Magan  891,  907 

V.  Manchester  Water  Works     752 
V.  Morgan  747,  891 

V.  Paul  69 

V.  Pine  River  Bank  143 


Section 
Hill  V.  Reardon  70 

V.  Simpson    225,  810,  811,  814,  815 

V.  Tierney  845 

V.  Walker  481 

Hill,  Fontaine  &  Co.  v.  Cool- 

idge  828 

Hillary  v.  Waller       349;  351,  352,  354, 
866,  867 
Hilleglass  v.  Hilleglass  782 

Hilliard,  Ex  parte  463,  464 

Hillier  v.  Jones  578 

Hillman  v.  Westwood  286 

Hillyard  v.  Miller      393,  399,  738,  748, 

765 
Hillyer  v.  Bennett 
Hilton  V.  Girard 

V.  Kenworthy 
Hinchel  v.  Daley 
Hinchenbroke  v.  Seymour 
Hinchmal  v.  Emans 

Hinckley  v.  Hinckley 

Hinckley  v.  Maclaerns 
Hind  V.  Poole 

V.  Selly 
Hinde  v.  Blake 
Hindman  v.  Dill 
Hindmarsh  v.  Southgate 

Hinds  V.  Hinds 

Hinds  V.  Mooers 
Hind's  Estate 
Hindson  v.  Weatherill 
Hines  v.  Spruill 
Hinkle  v.  Wanzer 
Hinney  ?>.  Phillips 
Hinnings  v.  Hinnings 

Hinson  v.  Williamson 

Hinton,  Ex  parte 

V.  Hinton 

V.  Kennedy 
Hintze  v.  Stingel 
Hinves  v.  Hinves 
Hinxman  v.  Poynder 
Hipkins  v.  Bernard 
Hipp  v.  Hutchell 
Hitch  V.  Leworthy 
Hitchcock    V.     Bank 


States 
Hitchens  v.  Hitchens 
Hite  V.  Hite 
Hitner's  Appeal 
Hoag  V.  Kenney 
Hoare  v.  Hoare 

V.  Osborne 

V.  Parker 

V.  Peck 
Hoare's  Case 
Hobart  v.  Andrews 

V.  Suffolk 
Hobbs  V.  Hull 

V.  Parker 


53 

86 

308 

905 

511a 

184 

335 

257 

414,  495 

451 

585,  593,  826,  827 

590,  591 

63 

261a 

602  n 

639 

199,  202 

559 

68 

679 

930 

415 

388 

192,  322 

456 

781 

450,  451,  554 

112 

918 

602  e 

408,  508 

of    United 

263 

317 

229,  675,  918 

672 

260 

672 

706,  714 

542 

862 

486 

595 

152,  153 

672 

175 


Hobday  v.  Peters  203, 440, 845, 848, 849 


Ixxviii 


INDEX   TO    CASES   CITED. 


Section 

Hobson  r.  Bell  602  o,  786 

V.  Blackburn  573 

V.  Staneor  873 

V.  Thelluson  596 

V.  Trevor  68,  872 

r.  Wliitlow  828 

Hockcnbiiry  v.  Carlisle  202 

Hockley  v.  Bantock  4G9 

1-.  iMawley  250,  251 

Hotlgdon  ?-.  8liannon  275 

Hodge  V.  Attorney-General  40 

r.  Hawkins  471,  472,  918 

V.  Wyatt  51)0 

Hodgens  v.  Hodgens  636 

Hodges  V.  Blagrave  786 

V.  Bullock  828 

V.  Cobb  678 

r.  New  England  Screw  Co.        207 

Hodgson  V.  Bibby  850 

V.  Bussey  363 

V.  Hodgson  613 

Hodgson's  Settlement  297 

Hodkinson  v.  Quinn  802,  803 

Hodle  V.  Healey  862 

Hodson  V.  Ball  385 

Hoes  1-.  Van  Hoesen  569,  571 

Hoffman  i'.  Anthony  602  7 

V.  Canow  128 

Hogan  V.  Jaques  162 

V.  Lepretre  602  k 

V.  Staghorn  160 

I'.  Wyman  58 

Hoge  V.  Hoge  181,  185,  206 

Hoghton  V.  Hoghton  185,  194,  201 

Hoile  I'.  Bailey  843 

Holbrook  V.  Allen  585 

V.  Comstock  672 

v.  Waters  629,  642 

Holcomb  V.  Coryell  275 

V.  Holcomb  411,  419,  510,  910 

Holden  v.  Crawford  187 

V.  New  York  &  Erie  Bank         242 

Holder  v.  Durbin  277,  287 

r.  Nunnelley  137 

Holdridge  v.  Gillespie  538 

Holdsliip  i\  Patterson  386  a 

Holdsworth  v.  Goose  784 

Holford  V.  Phipps  901,  921 

V.  Wood  671 

Holgate  V.  Eaton  127 

Holgate  r.  Hayworth  900 

V.  Jennings  451,  551 

Holland  V.  Alcock  99,  701,  710, 

713,  723 

Holland  v.  Baker  873,  874,  885 

V.  Holland  260 

V.  Hughes  40V 

V.  Peck  713,  724,  748 

Holland's  Case  17 

Hollenbeck  v.  Pixley  672 

Holliday  v.  Coleman  641 


Section 

76 

82 

166 

126 

863 

V. 

734 


Hollinshead's  App, 

Hollinslied  v.  Allen 

V.  Simras 
Hollis  V.  HoUis 
Hollis's  Case 
Hollis-street     Meeting  -  House 

Pierpont 

HoUoway  v.  Headington    108, 170,  367 

Holman,  Ex  parte  352 

V.  Loynes  202 

Holman's  Appeal  562 

Holme  V.  Williams  768 

Holmes  v.  Bell  883 

V.  Campbell  129 

f.  CoghiU  108,5116 

V.  Dring  453,  621 

V.  Fresh  187 

V.  Joslin  618 

V.  Lysight  514 

V.  Mead  748 

V.  Mitchell  546 

V.  Penney  386  6 

V.  Stone  218 

Holroyd  v.  Marshall  68 

Holt  V.  Agnew  204 

Holt  i:  Hogan  254 
V.  Holt                          129, 196,  538 

Homan  v.  Hague  886 

Home  V.  Patrick  654 

Homer  v.  Homer  82,  127 

r.  Siielton  547 

Hon  V.  Hon  86 

Hone  V.  Van  Schaick  380 


Honner  v.  Morton 
Honor  v.  Honor 
Honore  v.  Bakewell 
V.  Bridport 
V.  Hutchins 


C26,  639 

361,  362 

237,  238,  239 

606 

133 


Honberry  v.  Harding  300 

Hood  V.  Clapham  451,  467,  931 


Fahnestock 

V.  Oglander 

V.  Phillips 
Hook  V.  Djer 

V.  Dundas 

V.  Kinncar 

V.  Lowry 

Hooper  v.  Eyles 

V.  Holmes 

V.  Hooper 

V.  Rossiter 

V.  Savage 

V.  Sclieimer 

V.  Tuckerman 
Hoot  V.  Sorrell 
Hoover  i'.  Hoover 

V.  Samaritan  Society 
Hope  V.  Carnegie 

V.  Clifden 

V.  Fox 

V.  Gloucester 


217,  222 

113,  115,  386 

3-18 

341,  464 

512,  555 

874 

471 

137 

86 

393,  737 

544,  545 

462 

328 

590 

664 

671,  796 

667 

71 

580 

889 

869 


INDEX   TO   CASES   CITED. 


Ixxix 


Section 

Hope  V.  Harm  an 

103 

V.  liayley 

68 

V.  Hope 

603 

V.  Johnson 

308 

V.  Liddell              245 

337 

806,  846 

i\  Stone 

246  o 

Hopkins  v.  Glunt 

112 

Hopkins  v.  Hopkins  151, 

299, 

301,  304, 

385,  803 
467,  655 

V.  Myall 

460 

V.  Ray 

590 

V.  Turnpike  Co. 

31 

V.  Upshur 

748 

V.  Ward 

17,  328 

Hopkinson  v.  Burghly 

821 

V.  Dumas 

126 

322,  347 

V.  Ellis 

903  r« 

V.  Roe 

912 

Hopper  V.  Adee 

414 

V.  Conyers 

837, 

839,  842 

Hoppes  V.  Check 

770 

Hora  V.  Hora 

118 

Herd  V.  Hord 

632 

Horde  v.  Suffolk 

705,  712 

Hore  V.  Beecher 

184,  633 

V.  Woufle 

639 

Horn  V.  Barton 

767 

V.  Horn 

796 

V.  Lockhart 

456 

Hornbeck  v.  American  Bible  Soc.    730 

Home  V.  Askham 

511  a 

V.  Barton 

361 

371,  375 

V.  Lyeth 

359,  370 

Horner  v.  Swann 

765 

Hornsby  v.  Lee 

639 

Horrey  r.  Glover 

540 

546,  547 

Horrock  v.  Ledsam 

878,  892 

Horseley  v.  Chaloner 

171,  443 

V.  Fawcett 

884 

Horsey  v.  Hough 

187,  602  2 

Horsfall,  In  re 

337 

Horton  v.  Brocklehurst 

440,  821 

V.  Horner 

238 

V.  Horton 

309,  310 

V.  Riley 

212 

V.  Sledge 

299 

V.  Smith 

347,  348 

Hortopp  V.  Hortopp 

172 

Horwitz  V.  Norris 

254 

Horw'ood  V.  West 

112 

Hosack  V.  Rogers        693 

826 

894,  918 

Hosea  v.  Jacobs 

381,  748 

Hosford  V.  Merwin 

98 

Hoskins  v.  Nichols 

468.  887 

Hotclikins  v.  Gallatin  Turnpike        588 

Hotchkiss  r.  Fortson 

191 

Hotel  Co  V.  Wade 

206 

Hotz's  Estate 

514 

Houck  V.  Houck 

501 

Hough,  In  re 

309 

V.  Blythe 

685 

Section 

Hough  V.  Harvey  918  n 

r.  Richardson      171,  173,  174,  175, 

228 

Hougham  v.  Sandys  511  c,  785 

Hougliton,  Ex  parte  126,  130,  131 

V.  Davenport  815  b,  828 

V.  Davis  595 

V.  Hapgood  324 

House  V.  Way  449 

Houston  V.  Embry  649,  651 

V.  Nowland  593 

Hovenden  v.  Annesley        40,  228,  229, 

325,  855,  857,  858,  861,  862,  865 

Hovey  v.  Blakeman  417,  421,  422, 

423,  670 

V.  Blanchard  222 

How  V.  Bishop  142 

V.  Camp  216,  585 

V.  Godfrey  904,  910 

V.  Hutch  299 

V.  Slierewood  226 

V.  Weldon  171,  187,  188 

Howard  v.  Aiken  863 

V.  American  Peace  Society      262, 

699,  724,  748 

i\  Ames  602  o 

V.  Chaffers  576,  805 

V.  Digby  665 

r.  Duncom  787 

V.  Edgell  187 

V.  Fay  828,  838 

V.  Gilbert  -  282,  881 

V.  Hatch  602  r 

;;.  Henderson  300 

V.  Hooker  213,  663 

V.  Jemraet  837 

V.  Moffatt  545 

V.  Morton  627 

V.  Papera  816,  818,  819 

V.  Rhodes      276,  280,  282,  283,  901 

V.  Savings  Bank  98 

V.  Thornton  402 

V.  Waters  275 

V.  Whitfield  495 

Howard  Ins.  Co.  v.  Halsey  222 

Howarth  v.  Mills  66 

Howden  v.  Haight  212 

V.  Rogers  72 

Howe,  In  matter  of  43,  44 

V.  Dartmouth       440, 444,  450, 455, 

467,  641,  547,  548,  549,  848 

V.  Freeman  759 

V.  Howe  126,  450,  451,  547 

V.  Medcraft  572 

V.  School  District  734 

V.  Waldron  920 

Howell  V.  Ashmore  218 

V.  Baker  135 

V.  Barnes  493,  765 

V.  Edgar  592 

V.  Hanforth  556 


^•-/ 


Ixxx 


INDEX   TO    CASES   CITED. 


Howell  V.  Howell 


Section 

126,  362,  541,  6o8, 
8ti5,  872 
564 
202 
182 
330 
580 
640 
116 
704,  903  a 
126,  137,  814 
121 


V.  Price 

V.  Kansom 

V.  Whitchurch 
Hower  v.  Gtesaman 
Howgrave  v.  Cartier 
Howman  v.  Currie 
Howorth  V.  Dewell 
Howse  V.  Chapman 
Hoxie  I'.  Carr 

V.  Hoxie 

Hoy  V.  Master  113,  115 

Hoyle  V.  Jones  861 

V.  Stowe  530 

Hoyt  V.  Hilton  624 

Hubbard  v.  Elmer  769 

V.  Fisher  918 

V.  German  Cath.  Cong.       730,  768 

V.  Goodwin  64,  131 

V.  Lloyd  263,  574 
V.  U.  S.  Mortgage  Co.  863 

V.  Young  451 

Hubbell  V.  Hubbell  876 

V.  Medbury  864 

Hubble  V.  Osborne  147 
Huckabee  v.  Billingsly    498,  602  k,  921 

Hudson  V.  Carniichael  667 

V.  Hudson  205,  414,  425,  863 

V.  Maze  590,  600 
V.  Morris  171 

V.  Wadsworth  541 


Huff,  Ex  parte 

V.  Karle 

V.  Wright 
Huger  V.  Huger 
Hugh  V.  Smith 
Huiihes,  Ex  parte 
'  V.  Caldwell 

V.  Edwards 

V.  Emjjson 

V.  Evans 

V.  Garner 

V.  Gartli 

V.  Hall 

V.  Hughes 

V.  Kearney 

I'.  Key 

V.  Mills 
V.  People 

V.  Peters 
V.  Tabb 

V.  Turner 

r.  Wells 

V.  Williams 

V.  Wynne 
Hughlett  ('.  Hughlett 


461 

602  I- 

684 

610,  780 

471 

209,  285 

336 

55,  226,  228 

439,  462 

150,  158,  159 

220 

219 

71 

612,  613 

232,  235,  236 

884,  888 

609 

471 

681 

790,  794 

511c 

40,  240,  325,  667 

243 

600,  601 

418,  426 


Hughson  V.  Cookson  882 

V.  Mandeville  218 

Huguenin  r.  Baselev    104, 171, 181, 184, 

187, 189, 192, 204, 206, 210, 21 1, 511  a 


Section 

Hulkes  V.  Barrow  532,  538 

Hull  V.  Hull  3y7,  398 

Hullman  v.  Honcomp  707,  748 

Hulls  V.  Jeffrey  586 

Hulme  V.  Hulme  285,  286,  402 

V.  Tenant      654,  655,  657,  662,  670 

Hulse  V.  Wright  594 

Humberstone  v.  Chase  242,  875 

V.  Humberstone  376,  383,  390 

Humbert  v.  Trinity  Church        45,  855 

Humble  v.  Bill  796,  809,  815 

Hume  V.  Richardson  551 

Hummer  v.  Schott  232 

Humph  V.  Morse  892 

Humjjlierey  v.  Richards  664,  668 

Humphrey  v.  Hollis  874 

V.  Morse  269 

Hun  V.  Cary  401,  459 

H ungate  v.  Hungate  126 

Hungerford  v.  Earle  590 

Hunnewell  v.  Lane  86 

Hunt  v.  Ball  602  o 

V.  Bass  205,  602  v,  602  ee,  771 

V.  Bateman  558 

V.  Booth  647 

V.  Bullock  759 

V.  Crawford  328 

V.  Elliott  86 

V.  Fisher  786  a 

V.  Friedman  134 

V.  Hamilton  182 

V.  Holden  500 

V.  Hunt  299,  347,  672 

I'.  Mathews  183,  208,  218 

V.  Moore  140,  171,  189 

V.  Peacock  882 

V.  Rousmaniere  184,  226,  499 

V.  Scott  451 

V.  Townshend  783 

V.  Watkins  546 

Hunt,  Appellant  456 

Hunter  v.  Atkins        190,  195,  202,  210 

V.  Baxter  481 

V.  Gibson  282 

V.  Hallett  639 

V.  Hubbard  864 

V.  Hunter  98 

V.  Lawrence  225 

r.  Marlboro'  137 

r.  Simrall  219,  221 

V.  Stembridge  112,  117 

Hunter's  Will  182 

Huntington  v.  Huntington  621 

Huntley  v.  Buckner  602  aa 

Huntly  V.  Huntly    38,  95,  240,  674,  863 

Hunton  v.  Davies  869 

Hurd  V.  Silsbee  592 

Hurlburt  v.  Durant  918 

Hurley,  Ex  parte  780 

Hurst  V.  McNeil  77,  299,  301 

Husband  v.  Davis  412 


INDEX   TO    CASES   CITED. 


Ixxxi 


Husband  v.  Pollard 
Huskisson  v.  Bridge 
Hussey,  Ex  parte 
V.  Markliiim 
Huston  V.  Cassidy 
Hutcheson  v.  Hammond 

Hatchings  v.  Smith 
Hutchins  v.  Baldwin 

V.  Colhy 

V.  Heywood         142, 

V.  Lee  82,  86, 

V.  State  Bank 
Hutchinson  v.  Brown 
V.  Hutchinson 
V.  Lord 
V.  Morritt 
V.  Patrick 
V.  Reid 
V.  TindaU    76,  79,  82 

V.  Townsend 

V.  Underwood 
Hutt  V.  Fletcher 
Hutton  V.  Duey 

V.  Simpson 

V.  Weems 
Huj'Ier  V.  Kingsland 
Hyde  o.  Price 

V.  Warren  602  c 
V.  Wason 

V.  Woods 
Hyden  i'.  Hyden 
Hylton  V.  Hylton 
Hyman  v.  Devereux 
Hyndman  i\  Hyndman 
Hynshaw  v.  Morpeth 
Hyslop  V.  Clarke 


151, 


127 


Section 
111 
112,  115 
2d2 
271,  503 
205 
160,  470, 
480,  574,  915 
641 
499 
678 
165,  298,  299, 
301,  305 
162,  226 
814 
175,  191 
256,  258 
590 
427 
239 
877 
85,  162,  189, 
191 
882 
680 
869 
672,  673 
871 
476,  915 
766 
672,  674 
,  602  g,  602  h 
920 
386  a 
137,  498 
195,  200,  851 
602  g,  602  ee 
602  y 
700 
592 


Iddings  o.  Bruen 
Idle  V.  Cook 
Iglehart  v.  Armiger 
Ilimsen's  Appeal 

lies  V.  Martin 

Ilminster  School,  In  r 
Imboden  v.  Atkinson 
Imlay  v.  Huntington 


234, 
459,  460, 


199,  428,  853 
312 
238 
469 
770 
733 
199 

359,  365,  655, 
660 


Imperial  Mer.  Cred.  Ass'n  v.  Cole 

man  207 

Inches  i\  Hill  920 

Inchiquin  v.  French  86,  93,  566 

Incledon  v.  Northcote  616,  633 

Incorporated  Society  v.  Price    724,  729 
V.  Richards  694,  733,  745 

Indianapolis  v.  Grand  Master  705,  710, 

748 


Section 

Inge,  Ex  parte  743 

V.  Forrester  651 

Ingersoll  v.  Cooper  330 

Ingham  v.  Burnell  75 

lugle  c.  Partridge       402,  443,  445,  827 

Inglefield  v.  Coghlan  648 

Inglis  V.  Sailors'  Simg  Harbor    46,  47, 

709,  722,  730,  731,  736,  748 

Ingrahara  v  Baldwin  83 

V.  Meade  251 

('.  Wheeler  592 

Ingham  v.  Kirkpatrick  900,  918 

Inloes  V.  American  Exchange 


Bank 

■  In  re  Allen 

■  "    "  Baker 


592 
918 
918 
476  a 
828 
546 
121 
275 
918 
552 
275 
918 
275 
275 
330 


"    "  Brewer 

"   "  Cavin  v.  Gleason 

"    "  Gerry 

"   "  Hawley 

"    "  Holland 

"    "  Jackson 

"    "  Jones 

"   "  Martyn 

"   "  Mason 

"    "  Nash 

"    "  Watson 

Insurance  Company  v.  Smith 

In  wood  V.  Twyne  476,  605,  915 

lorr  r.  Hodges  311 

Ips.  Manuf.  Co.  v.  Story  266,  440 

Irby  V.  Irby  474 

Iredell  v.  Langston  915 

Ireland  v.  Geraghty  99,  732 

Irnham  v.  Child  76,  226 
Irvine  v.  Campbell  232 
V.  Dunham  275 

V.  Irvine  33 

V.  Kirkpatrick  173,  18a 

V.  Robertson  228 

V.  Sullivan  112, 152 

Irving  V.  De  Kay  894,  903  a 

Irwin  V.  Keen  590,  600 

V.  Rogers  900 

Irwin's  Appeal  416 

Isaac  V.  Defriez  256,  699 

V.  Gompertz  718 

Isaacs  V.  Weatherstone  824 

Isabella  Denby,  In  re  272 

Isham  V.  Delaware,  &c.  R.  R.  Co.    771 

Isherwood  v.  Oldknow  529 

Ithell  V.  Beane  367,  795,  796 

Iverson  v.  Saulsbury  815  c,  820  a, 

850 

Ives  V.  Allyn  93 

V.  Davenport  786  a 

Ivory  ?'.  Burns  77,  312 

Ivy  V.  Gilbert  581,  597 

Izod  I'.  Izod  249,  255 


Ixxxii 


INDEX   TO    CASES   CITED. 


J. 

Jackman  v.  Delafield 

V.  Hallock 

V.  Ringland 

Jacks  V.  The  State 

Jackson  v.  Bateman 

V.  Billinger 

V.  Blount 

V.  Bowen 

V.  Brown 

V.  Burr 

V.  Burtes 

V.  Cad  well 

V.  Calden 

V.  Gary 

V.  Cator 

V.  Clark  602  t 

V.  Cleveland 

V.  Cornell 

V.  Delancy 

V.  Dunsbagh 

r.  Button 

V.  Feller 

V.  Ferris 

V.  Fish 

V.  Forrest 

V.  Garnsey 

V.  Given 

V.  Hampton 

V.  Hartwell 

V.  Haworth 

V.  Hobhouse 

V.  Hurlack 

V.  Jackson  136, 

V.  Jansen 

V.  Leek 

V.  Lignon 

V.  Matsdorf 

V.  Mills 

V.  Moore 


82,  83, 


V.  Morse 
V.  IMyers 
V.  Parker 
V.  Pierce 
V.  Phillips 


690,  694, 
705,  709,  710, 


-V.  Pool 
V.  Potters 
V.  Robins 
V.  Root 
V.  Rowe 
V.  Sackett 
V.  Schauber 
V.  Siiarp 
V.  Sternberg 
V.  Sublett 
V.  Welch 
1-.  West 


Section 

500 

238 

126,  134,  135 

813  a 

132 

380 

602  J 

602  bb 

754 

765 

499 

162,  221,  299 

602  iJ 

299 

226 

,  602  M,  602  aa 

162 

599 

336 

299 

165 

139,  144 

499 

298,  299,  312 

142 

162 

499 

602/ 

42,  43,  44 

654 

670 

152 

606,  612,  918 

783,  785 

222 

783 

126,  143 

126 

130, 133,  349, 

351 

126 

299 

591 

349 

697,  700,  701, 

715,  719,  724, 

728,  748 

815  6 

500 

315 

299 

219 

866 

308,  765 

222 

126 

633 

196,  869 

660 


Jackson  v.  Williams 
V.  Winslow 
V.  Wood 
V.  Woods 
V.  Woolly 
V.  Von  Zedlitz 

Jackson's  Case 


Section 
780 
222 
139 
126 
474 

827  a 
828 


Jacob  V.  Lucas    414,  438,  505,  848,  884 

Jacobs  V.  Amyatt  634,  636,  649 

V.  Lake  231 

V.  Pou  863 

V.  Ryland  263 

Jacomb  v.  Harwood  225 


Jacot  V.  Corbett 

592 

r.  Emniett 

463,  468 

Jacques  v.  Hall 

81 

Jail  V.  Mills 

248 

James,  Ex  parte 

197,  907 

V.  Allen 

159 

711,712 

V.  Bird 

235 

V.  Cowing 

215 

V.  Dean 

195,  538 

V.  Everly 

685 

V.  Frearson 

261 

262 

267,  419 

V.  Gibbs 

602  ee 

627,  642 

I'.  Greaves 

171 

V.  Holmes 

127,  210 

V.  James 

141,  195 

I'.  Johnson 

347 

V.  Mayrant 

661 

V.  Morey 

347 

V.  Morgan 

187 

James's  Appeal 

262 

Jameson  v.  Shelly 

463,  468 

V.  Smith 

308 

Jamison  v.  Brady 

51, 

277, 

647,  648 

V.  Lindsay 

891 

Jane  v.  Kennedy 

768 

Janes  v.  Throckmorton 

863 

Janey  v.  Latane 

748 

Jansen  v.  Ostrander 

43 

January  v.  Poyntz 

468 

Jaques  i'.  Methodist  Church 

667 

Jarmon  v.  Wilkinson 

660 

Jarnagan  v.  Conway 

254 

Jarvis  v.  Duke 

171 

V.  Prentice 

648 

Jasper  v.  Howard 

651 

Jaudon  v.  National  City  Bank 

814 

Jay  V.  Long  Island  R 

R. 

684 

JeaflFerson's  Trusts,  1 

n  re 

256 

Jeans  v.  Cooke 

147 

Jecko  V.  Lansing 

251 

Jee  V.  Audley 

385 

V.  Thurlow 

672 

Jefferies  v.  Harrison 

892 

Jefferson  v.  Tyrer 

498 

Jeffersonville  Assoc.  ^ 

.  Fisher 

602  u 

Jefferys  v.  Jefferys 

97, 

107, 

108,  111, 
162,  367 

V.  Marshall 

900 

INDEX   TO    CASES   CITED. 


Ixxxiu 


Section 

Jeffreys  v.  Small  136 

Jeifries  v.  Lawsori  426 

Jemmit  v.  Verrel  705,  712 

Jencks  v.  Alexander  142,  144,  149 

602  /,  602  0,  602  g,  602  s,  602  x 

Jenckes  v.  Cook  215 

Jenison  v.  Groves  126,  137 

Jenkins,  In  re  63U,  642 

J^x  parte  17 

V.  Doolittle  468 

V.  Eldredge   81,  173,  181,  206,  220, 

918 

V.  Fickling  432 

V.  Frink  126,  127,  129 

V.  Hiles  597,.  802 

V.  Jenkins  314 

V.  Jones  782,  816 

V.  Lester  70 

V.  Milford  329 

V.  Pye  188,  201 

V.  Robertson  260,  847,  876 

V.  Row  761 

V.  Walter  463 

V.  Whyte  918 

Jenks  V.  Backhouse  343 

Jenner  v.  Hooper  739 

Jenness  v.  Howard  191 

Jennings  v.  Broughton  230 

V.  Davis  262,  639,  678 

V.  Moore  217 

V.  Selleck  144,  151 

V.  Shacklett  138,  141 

Jennison  v.  Hapgood  195,  205 

Jenny  v.  Gray                  '  676,  678,  681 

Jenour  v.  Jenour  903  a 

Jernegan  v.  Baxter  630 

Jerrard  v.  Saunders  218 

Jervis  v.  Wolferstan  485,  910,  932 

Jervoise  v.  Duke  511,  515 

V.  Northumberland  357,  359,  360, 
366,  372,  390 

V.  Silk  614,  615 

Jesse  V.  Barnett  884 

Jessup  i\  Hulce  590 

Jesus'  College  v.  Bloom  871 

Jesus'  College  Case  700 

Jevon  V.  Bush  17,  54,  482 

Jewett,  ^x  ;)a?-te  610 

V.  Davis  685 

V.  Miller  195,  205 

V.  Palmer  221 

V.  Woodward  596,  894,  918 

Jewson  V.  Moulson    239,  629,  632,  633, 
636,  641 

Jochumsen  v.  Suff.  Sav.  Bank  929 

Jodrell  V.  Jodrell  32,  118,  185,  620,  672 

Joel  r.  Mills  248,  388,  555 

John  r.  Battle  127 

John  V.  Bennett  197 

Johnes  v.  Lockhart  648,  649 

Johns  V.  Sergeant  779 


Johnson,  Ex  parte 

V.  Aston 

V.  Ball 

V.  Barber 

V.  Beattie 

v.^  Bennett 
V.  Billups 

V.  Blackman 

V.  Bridgewater  Co, 

V.  Gary 

V.  Cawthorn 

V.  Chisson 

V,  Clark 

V.  Clarkson 

V.  Currin 

V.  Delaney 

V.  Dorsey 

V.  Dougherty 


Section 

457 

826 

93 

427 

603 

195,  205 

117 

195 

645,  556 

801 

239 

686 

602  rf 

93,  160,  715 

380 

82 

602  s,  782 

126,  137 


V.  Eason     602  o,  602  q,  602  u,  602  x, 
602  ee 

V.  Fesemeyer  202 

V.  Freeth  671 

V.  Gallagher  658,  659,  663 

—V.  Giles  166 

V.  Glasscock  182 

V.  Harvey  591 

V.  Henry  602  ee 

V.  Humphrey  863 

V.  Johnson  144,  160,  200,  225, 

299,  421,  449,  544,  545,  639, 
641,  851,  921 

V.  Kelly  160 
V.  Kennett    597,  795,  796,  801,  802 

-V.  Krassin  126,  226 

-V.  Lawrence  918 

V.  Lewis  847 

V.  Longmire  748 

V.  Malcomb  585 

V.  Matsdorf  146,  147 

V.  Mayne  '  743 

V.  Medlicott  191 

V.  Milksopp  564 

V.  Miller  471 

V.  Moore  551 

V.  Newton  443,  446,  462,  463 

-V.  Prairie  860 

V.  Prendergast  462 

V.  Quarles  126,  139 

-y.  Richardson  137 

i\  Richey  847 

V.  Roland  259 

V.  Ronald  79 

V.  Rowlands  112 

V.  Runyan  677 

V.  Simpson  275 

■V.  Simians  815  c 

«•  Smith  34,  855,  863 

V.  Stanton  511  c 

V.  Swire  845 

V.  Telford  9]0 

V.  Thweatt  590 


Ixxxiv 


INDEX  TO   CASES   CITED. 


Section 

Section 

Johnson  v.  Turner 

602  s,  602  bh 

Jones  V.  Ricketts 

188 

V.  Vail 

678 

V.  Roberts 

203 

V.  Ward 

122 

V.  Salter 

652 

653,  671 

V.  Webster 

347,  348 

V.  Scott 

558 

559,  601 

V.  Williams 

602  II,  602  ee 

V.  Selby 

569 

Johnson's  Appeal 

262,  469,  817 

V.  Seligman 

762 

Johnston  v.  Eason 

771,  787 

V.  Shaddock 

217 

334,  828 

r.  Johnston 

679 

V.  Sherrard 

554 

V.  Spicer 

122 

V.  Slaughter 

133 

V.  Swan 

704,  705,  712 

V.  Slubey 

82,85 

V.  Todd 

903  a 

V.  Smith 

428,  814 

Johnstone  v.  Baker 

773 

V.  Stanlev 

221 

V.  Lumb 

668 

V.  StockeU    268 

,274 

,280 

901,  918 

Joice  V.  Taylor 

171 

V.  Strong 

330 

Joliffe,  Ex  parte 

929 

V.  Suffolk. 

518 

V.  East 

903  a 

V.  Torin 

248 

250,  251 

V.  Jolland 

432 

V.  Tripp 

209 

JoUands  v.  Burdett 

670,  671 

V.  Tucker 

511c 

Jones,  In  re 

280,  401,  929 

V.  Turberville 

866 

V.  Bradley 

157 

V.  Ward 

468 

V.  Bush 

301 

V.  Waste 

672 

V.  Cole 

330 

V.  Whitebread 

591 

V.  Dawson        552,  554,  602  v,  910, 

V.  Williams 

697 

704 

724,  814 

913 

V.  Wilson 

82,83 

V.  Dexter 

430 

V.  Win  wood 

784 

V.  Dougherty 

275,  818 

V.  Zollicoffer 

218 

V.  Foote 

257 

Jones's  Appeal 

404, 

415, 

416,  417, 

V.  Foxall 

468,  470,  471 

418 

420, 

421,  501 

V.  Fulghum 

276  a 

Case 

918 

V.  Geddes 

72 

Joor  V.  Hodges 

303 

V.  Gibbons 

438,  633 

V.  Williams 

610,  828 

V.  Goodchild 

157,  434 

Jordan  v.  Cheney 

243,  828 

('.  Graham 

129 

Jordan  v.  Holkam 

516 

V.  Greatwood 

117 

V.  Hudson 

288 

V.  Harris 

659,  662 

V.  Jordan 

843 

V.  Higgins 

365,  849 

V.  Money 

208 

V.  Jones        218 

330,  580,  766,  876 

V.  Roach 

380,  392 

V.  Kearney 

170,  196 

Jorden  v.  Morey 

870 

V.  Langton 

361 

Jordon  V.  Hunt 

468 

V.  Lewis       407, 

441,  443,  457,  520. 

Jortin,  Ex  parte 

725 

900,  901,914 

Josling  V.  Karr 

881 

V.  Lock 

97,  99 

Josselyn  v.  Josselyn 

615 

'-•.  Lloyd 

82,  195,  851 

Jourolmon  v.  Massengill 

312, 

i;.  Lord  Saye  and  Seale     301,305, 

815  « 

308,  310 

Jowitt  V.  Lewis 

754 

V.  Maggs 

397,  584 

Joy  V.  Campbell 

404, 

419, 

421,  828, 

V.  McKee 

181 

837 

V.  MePhillips 

275 

V.  J.  &  M.  Plank  R  Co. 

754 

V.  Miller 

380 

Joyce  ?'.  Gunnels 

282,  540 

V.  Mitchell 

160 

V.  Hutton 

108 

V.  Morgan 

347,  358,  359 

V.  Joyce 

277,  287 

V.  Morley 

108 

Joyner  v.  Conyers 

810 

V.  Morrall 

468 

Jubber  v.  Jubber 

112, 

117,620 

V.  Nabbe 

86 

Judah  ;'.  Judd 

438 

V.  Neale 

602  2 

Judd  V.  Dike 

468 

V.  Obinchara 

95,  100,  103,  109 

Judd  V.  Haseley 

137 

V.  Parsons 

863 

V.  Moseley 

226 

V.  Powell 

474,  538,  913 

Judge  V.  Booze 

780 

V.  Powles 

218,219 

V.  Jackson 

918 

V.  Price 

492,  505,  597,  795 

!•.  Mathes 

453 

V.  Heeder 

212 

V.  Wilkins 

187 

INDEX   TO    CASES   CITED. 


Ixxxv 


Section 
Juilice  V.  Prevost  2Qi. 

Judson  V.  Corcoran  438 

V.  Gibbons  259,  261,  262,  270 

V.  National  City  Bank  225 

Juler  V.  Juler  94 

Julian  V.  Reynolds  195,  2U5 

Junction  Railw.  v.  Uuggles       764,  758 
Justices  I'.  Haygood  891 

Justin  V.  Wynne  829 

Juvenal  v.  Jackson  221 

Juzan  V.  Toulmin  175,  187,  2:J0 


K. 


Kalin  V.  Gunherts  212 

Kanipf  V.  Jones  380,  890 

Kane,  In  re  612 

V.  Bloodgood  228,  855,  863,  864 
Kane  County  v.  Herrington  227,  246  a 
Kantrowitz  v.  Prater  680 

Karr  v.  Karr  471,  472 

V.  Washburn  76 

Kates  V.  Burton  507 

Kator  r.  Pembroke  828 

Kauffelt  V.  Bower  232 

Kaufman  v.  Crawford      458,  607,  836, 

842 

Kay  V.  Crook  208 

V.  Scates  299 

V.  Smith  851 

Kaye,  In  re  51,  275 

V.  Powell  549 

Kayser  v.  Maughan  166,  226 

Keane  i'.  Robarts       246,  403,  789,  809, 

810,  811,  907 

Kearnan  v.  Fitzsimon  260 

Kearney  v.  Kearney  476  a 

Kearsley  v.  Woodcock    386  b,  3S8,  555 

Keates  v.  Burton  508,  510 

V.  Cadogan  173,  179 

Keating  v.  Keating  769 

Keaton  v.  Cobb  132,  144 

V.  Greenwood  863 

V.  McGwier  864 

V.  Scott  680 

Kebble,  Ex  parte  616,  619 

Keble  v.  Thompson  419,  453 

Kedian  v.  Hoyt  437  a 

Kee  V.  Kee  918 

V.  Vasser  664 

Keecii  V.  Sandford  196,  538 

Keefer  v.  Schwartz  511  c 

Keeler  v.  Keeler  894 

Keen  v.  Walbank  315 

Keene  v.  Deardon      305,  307,  309,  315, 
349,  353,  354 
Kecne's  App.  282 

Keep  V.  Sanderson  590 

Keiley  v.  Keily  611  a 

Kfily  V.  Fowler  379 


Section 
Keily  v.  Monck  515 

Keisselbrock  o.  Livingston  226 

Keister  v.  Scott  794 

Keitli  V.  Horner  238 

Kekevvich  v.  Manning  68,  98,  101, 

102,  104,  105,  HI,  438 

Kellaway  v.  Johnson         460,  467,  509, 

847,  849 


Keller  v.  Auble 

V.  Nutz 

V.  Ruiz 
Kellett  V.  Kellett 

V.  Ratlibun 
Keiley  v.  Babcock 

V.  Jenness 
Kellogg  V.  Carrico 
V.  Hale 

V.  Slauson 

V.  Wood 
Kellogg's  Case 
Kellum  V.  Smith 
Kelly  V.  Drew 

V.  Johnson 
V.  Karsner 

V.  Lank 

V.  Scott 
Kelsal  V.  Bennett 

Kelsey  v.  Snyder 

Kelsey  v.  Western 
Kelso  V.  Tabor 
Kemp  V.  Burn 

V.  Burr 

V.  Kemp 

V.  McPherson 
Kempf  V.  James 
Kempton  v.  Packman 
Kenan  i'.  Hall 

V.  Paul 
Kendall  v.  Granger 

V.  Mann 

V.  Micfeild 

V.  New  England,  &c.  918 

Kenge  v.  Delavall  662 

^^Kennedy  v.  Baker      127,  828,  865 

Kennedy  v.  Daley   122,  216,  433,  828, 
830,  863 


211 
241 

680 

151 

463,  468 

82,  594 

126,  130,  132,  246  a 

300 
590 
126 

918 
215 
678 

126,  133 
76,  143 
591 
386 
219 
189 
562 
660 
900 
821 
8,  251,  507,  511,  570 

576,  796 
888 
190 
471 
918 

159,711 

126,  133 
13 


V.  Fury 

V.  Hammond 
?;.  Hoy 

V.  Keating 

V.  Kennedy 

V.  Kingston 

V.  Strong 

V.  Turnley 

V.  Ware 

v.  Winn 

Kennedy's  Appeal 
Kennell  v.  Abbott 
Kenney  v.  ITdall 
Kenrick  v.  Beauclcrk 
Kensington  v.  Bouverie 


17,  328 

602  # 

99 

129,  135 

189,  226,  865 

251,  255 

463 

293 

109,  111 

259,  261 

912 

182 

631,  632,  636 

305,  308 

554 


Ixxxvi 


INDEX   TO   CASES   CITED. 


Section 

Section 

Kensington  v.  DoUand 

647, 

649,  651 

Ki 

mball  V.  Universalist  Society  in 

Kenson's  Case 

739 

Sweden 

748 

Kent,  A'.r  parte 

617 

Kime  v.  Welpitt 

"» 

616 

V.  Clialfant 

197 

Ki 

mm  V.  Weippert 

680 

V.  Dunliam 

710 

Kimmel  v.  McRight 

144,  149 

V.  Gerhard 

232 

— 

—V.  Smith 

171 

V.  Hutchins 

900 

Kinard  v.  Hiers 

25,  215 

V.  Jackson 

870 

Kincaird's  Trusts,  In  re 

633,  636 

V.  Meliaffey 

227 

Ki 

ncell  V.  Feldman 

226 

V.  Plumb 

467,  670 

Ki 

nch  V.  Ward 

297 

Kentish  v.  Kentish 

569 

Kinchant  v.  Kinchant 

201 

V.  Newman 

364 

Kinder  v.  Miller 

137 

Keogh  V.  Catlicart 

654 

V.  Shaw 

243 

Keon  V.  Magawle^' 

787,  874 

V.  King,  In  re 

901,  902 

Kep  V.  Bank  of  New  York 

58 

V.  Akerman 

312 

Ker  V.  Buxton 

624,  672 

V.  Bellord 

19,  52 

V.  Snead 

471 

V.  Boston 

135 

Kerlin  v.  Campbell 

151,  158 

— 

—V.  Bushnel 

322 

Kern  v.  Hazlerigg 

238 

V.  Coggan 

434  a 

Kerr  i\  Day 

38,  231 

V.  Cotton 

213 

V.  Dungannon 

195, 

206,  380 

V.  Cushman 

129,  428,  915 

V.  Kirkpatrick 

421 

V.  Denison              54 

151 

152.  153 

V.  Laird 

468 

V.  Donnelly           188, 

240 

259.  280 

V.  Verner 

248,  473 

V.  Duntz 

602 

X,  602  an 

V.  Water 

421 

V.  Eggington 

837 

Kershaw  v.  Snowden 

122 

V.  Hake 

580 

Ketchum  v.  Ketchum 

891 

v:  Hamlet 

188 

V.  Mobile  and  Ohio  R.  E. 

275 

V.  Holland 

64 

Ketrick  v.  Burnsly 

182 

V.  Jenkins 

17 

Kettle  V.  Hammond 

587 

V.  King 

441 

898,  914 

Kettleby  r.  Atwood 

.367 

V.  Lawrence 

264,  343 

Kevan  v.  Branch 

591,  592 

V.  Leach 

343 

Keyes  v.  Wood 

602  n 

V.  Merchants'  Exchange 

Co. 

V.  Carleton 

104 

299,  602  i 

Keyser's  Appeal 

304 

V.  Mildmay 

825 

Kiah  V.  Grenier 

371,  391 

V.  Mitcliell 

153 

Kibbee  v.  Hamilton  Ins. 

Co. 

172 

V.  Morrison 

927 

Kibbett  v.  Lee 

511  b 

V.  Mullins 

922 

Kiddill  V.  Farnell 

100,  929 

V.  Pardee 

141 

Kidney  v.  Coussmaker 

556, 

570,  867, 
872 

V.  Parker               312 
V.  Phillips 

820 

705,  737 
269 

Kightley  V.  Kightley 

569 

— 

—V.  Remington 

195 

Kilbee  v.  Sneyd         402 

,  40.3, 

422,  424, 

V.  Roe 

474 

445 

851,  914 

V.  Rundle 

748 

Kildare  v.  Eustace 

40,71 

V.  Savery 

201,  202 

Killam  v.  Allen 

313 

393,  398 

V.  Stone 

411 

Killar  v.  Beclor 

639 

V.  Strong 

903  a 

Killeran  v.  Brown 

226 

V.  St.  Catharine's  Hall 

743 

Killett  V.  Killett 

151 

152,  1.54 

V.  Talbott    441,  454, 

455, 

459,  460, 

Killick,  Ex  parte 

648 

468 

V.  Flexney 

196,  5.38 

V.  Taylor 

903  n 

Kilpatrick  v.  Johnson 

396 

398,  738 

V.  Whitely 

367 

V.  Kilpatrick 

2.39 

V.  Whiton 

769 

Kilpin  r.  Kilpin  75,  77,  86, 144, 146, 147 

V.  Wilson 

434,  696 

Kilroy  v.  Wood 

815  a 

V.  Wise 

209 

Kilvert's  Trusts,  In  re 

714 

V.  Woodhull 

160, 

272,  748 

Kilvington  v.  Gray 

550 

King's  Mortgage 

338 

Kimball  v.  Ives 

863 

Kingdom  v.  Bridges 

144,  146 

V.  Jolmson 

396 

398,  738 

Kingliam  v.  Lee 

49,  121 

V.  Morton 

86 

Kingland  v.  Rapelye 

359 

f.  Reading 

440 

459.  465 

Ki 

ngsbury  v  Burnside 

82 

INDEX   TO   CASES   CITED. 


Isxxvii 


Section 

Kingston  v.  Lorton 

112,  855 

Kinmouth  v.  Brigliam 

545,  547 

Kinnard  v.  Kinnard 

541 

V.  Thompson 

593 

Kinner  v.  Walsh 

680 

Kinney  v.  Harvey 

238 

V.  Heatley 

918 

Kinsler  v.  Clark 

299 

Kinsley  v.  Ames 

602  bb 

V.  Boyd 

136 

Kintzinger  Estate 

639 

Kinzie  ».  Penrose 

84 

Kip  V.  Bank  of  New  York 

463 

V.  Deniston 

416,  420 

Kirby  v.  Masly 

900 

V.  Schoonmaker 

599 

V.  Taylor 

851 

Kiricke  v.  Bransbey 

152 

Kirk  V.  Clark 

874,  878 

V.  Paulin 

310,  648 

V.  Webb 

137,  841 

Kirkbank  v.  Hudson 

700 

Kirkham  o.  Smith 

348 

Kirkland  v.  Cox  312,  315,  320,  328,  520 

V.  Narraraore  272 

Kirkman  v.  Booth      433,  454,  877,  904 

Kirkpatrick  v.  Beauford  678 

w..  Davidson  86,  126 

V.  McDonald    77,  98,  127,  133,  330 

V.  Rogers  570 

Kirwan  v.  Daniels  593 

Kirwin  v.  Weippert  655 

Kirwood  v.  Thompson  199 

Kisler  v.  Kisler  126,  127,  134,  215 

Kissam  v.  Dierkes  602  g,  784 

V.  Edmundson  591 

Kitchen  v.  Bradford  828 

Kittleby  i\  Lamb  928 

Kittredge  '•.  Fulsome  93 

Klapp  V.  Shurk  591,  593 

Kleberg  v.  Bond  456 

Kleiser  v.  Scott  238 

Klepner  v.  Laverty  371 

Kline's  Appeal  127,  144 

Estate  213 

Klock  0.  Cronkhite  602  s 

Knapp  V.  Noyes  513 

r  Smith  678,  686 

Knatchbull  v.  Fearnhead  846,  848,877, 

924 
Kneeling  v.  Brown  569 

Knefler  v.  Shreve  815  a 

Knight  V.  Boughton  112,  114,  116 

V.  Bowyer  745,  850,  863 

V.  Brawneer  639 

V.  Cameron  514 

V.  Garborough  254 

V.  Havnie  415 

V.  Hunt  212 

V.  Knight      114,  116,  653,  654,  828 
V.  Leak  633 


Section 

Kniglit  ('.  Leary 

126 

V.  Loomis 

262, 

264,  500 

v.  Majoribanks 

199 

V.  Martin            476  a, 

901, 

922,  928 

V.  Packer 

590 

V.  Plymouth         406, 

457, 

465,  914 

V.  Robinson 

338 

V.  Selby 

357 

V.  Whitehead 

667 

Knight's  Trust 

927 

Kniskern  i'.  Lutheran  Churches      733, 

748 

Knorr  v.  Raymond 

858 

Knott,  Ex  parte 

218,  618 

V.  Cottee      115,  116, 

461, 

468,  471, 

472. 

898, 

902,  907 

V.  HiU 

188 

Knottman  v.  Peyton 

213 

Knouffy.  Thompson 

143,  149 

Knowles  v.  McCamley 

660 

V.  Knowles 

891 

V.  Spence 

855 

Knowlton  v.  Brady 

453,  468 

Knox  V.  Bigelow 

891 

V.  Hotham 

119 

V.  Jenks 

302 

V.  Jones 

382,  391 

V.  Knox 

112 

V.  McFarran       75,  7 

7,82 

133,  137 

V.  Pickett 

421,  891 

Knuckolls  1-.  Lea 

175 

Knust,  Ex  parte 

240,  282 

Knye  v.  Moore 

438 

877,  878 

Koeber  v.  Sturgis 

634 

Koenig's  Appeal 

304,  312 

Korns  v.  Shaffer 

195 

Kraemer  i'.  Deustermanr 

I         206 

-: —  Kraft  V.  Lohman 

275 

Kraken  >'.  Shields 

456 

Kramer  v.  Arthur 

218 

Kreider  v.  Boyer 

640 

Kreitz  v.  Frost 

892 

Krumbaar  v.  Burt 

639,  641 

Krupp  V.  SchoU 

213,  641 

Kruse  v.  Stephens 

205 

Kuhn  V.  Newman 

299 

Kupferman  v.  McGehee 

815  a, 

8156 

Kuster  v.  Howe 

344 

Kutz's  Appeal 

863 

Kyle  V.  Barnett           454 

,464 

470,  471 

V.  Tait 

221 

236,  237 

L. 

Lacey,  Ex  parte  195,  197,  209,  285,  428 
Lachlan  v.  Reynolds  380 

Lacon  i'.  Lacon  862 

Lacy  V.  Willson  218,  222 

Ladbroke,  Ex  parte  780 


Ixxxviii 


INDEX   TO    CASES   CITED. 


Fection 
Ladbrook  v.  Bleaden  ^"1 

Latkl  r.  Ladil  5116 

Laddington  v.  Kine  379 

Lade  c.  Ilolford  349,  350,  355,  395 

Lade  ;•.  Lade  12(5 

Lady  Mien's  Charity  724 

Lady  Wellesley  v.  Earl  of  INIorn- 

ington  51  In 

Lafferty  v.  Farley  863 

Lagnw  V.  Badollet  232,  237,  238 

Laidlaw  r.  Organ  171,  180 

Lajoye  v.  Prinnu  929 

Lake  v.  Currie  511  c 

V.  De  Lambert  48,  51,  54,  275,  282 

V.  Freer  82 

V.  Gibson  132,  130 

V.  Lake  150 

Lakin  V.  S.  B.  M.  Co.  231 

Lallance  v.  Fislier  786 

Lamar  v.  Simpson  62 

Lamas  v.  Bay  ley  135 

Lamb  v.  Davenport  231 

V.  Goodwin  602  dd 

V.  Lamb  551 

Lamb's  Appeal  464,  466 

Lamhe  v.  Urton  101,  102,  105 

Lambert  v.  Parker  616,  619 

V.  Thwaites  250,  258 

Lambeth  Cliarities,  In  re  699 

Lamerson  y.  Morvin  602?/ 

L'Amoureux  r.  Crosby  35 

c.  Van  Rensselaer  526,  660 

Lampet's  Case  68 

Lampliear  v.  Buckingham  762 

Lampley  y.  Watson     647,  666,  677,  684 

Lamplugh  v.  Lamplugh      54,  143,  144, 

146 

Lanahan  v.  Latrobe  596 

Lancashire  v.  Lancashire  273,  493 

Lancaster  Charities  278 

V.  Evors  431 

V.  Dolan     310  a,  652,  655,  661,  768 

V.  Elce  593,  600 

V.  Thornton  308 

Land  Credit  Co.  v.  Fermoy  207 

Landen  v.  Green  894 

Lander  v.  Weston  808 

Landis  v.  Saxton  128 

Lane,  In  re  618 

r.  Colman  918 

V.  Debenham      294,  340,  414.  493, 

494,  505 

V.  Dighton    139,  835,  837,  839,  842 

V.  Ewing  79,  98,  100,  163 

V.  Lane  112 

r.  Page  511  n 

V.  Tidliall  602  o,  602  x,  602  ec 

Lane's  Appeal  468 

Lanesborough  v.  Fox  380 

I'.  Kilmaine  219 

Lang  V.  Ropke  398 


Section 
Langdale's  Settlement  Trust,  In  re  4G0 
Langdon  v.  Astor  93 

V.  Simson  381,  395 

Langford  v.  Auger  336 

V.  Gascoyne  402,  404,  419,  444, 
467,  849 

V.  Mahoney  908,  910 

Langham  v.  Sandford  94,  150,  157 

Langley  v.  Brown  226 

V.  Fisher  433,  803 

V.  Hawk  818 

r.  Sneyd  351,  354 

Langmead's  Trusts  795 

Langsdale  v.  Woollen  76 

Langstaffe  c.  Taylor  203 

Langston  v.  Gordon  163 

V.  Olivant  329,  417,  453,  460,  539 
Langton  v.  Astrey  828,  829 

f.  Brackenburgh  614 

t'.  Horton  68 

Langworthy  i-.  Chadwick  541 

Lanier  v.  Brunson  918 

Lanning  v.  Lanning  585 

Lanoy  v.  Athol  577,  613,  614,  635 

Lansdowne  v.  Lansdowne  134,  871 

Lansing  r.  Lansing  262 

Lanterraan  v.  Abernathy  97 

Lantry  v.  Lantry  134 

Lantsbury  v.  Collier  498 

Laprimaudaye  v.  Teissier  644 

Larco  v.  Casaneuava  198 

Large 's  Case  388,  555 

Larkin  !•.  Mason  576 

Larkins  v.  Biddle  184 

V   Rlioades  132,  137 

Larod  v.  Douglass  418 

Larrow  v.  Beam  218 

Laskey  v.  Perrysburg  Board,  &c.  511  h 
Lasley  v.  Lasley  275 

Lassence  v.  Tierney  3C0,  511a 

Lassiter  i\  Dawson  627 

La  Terriere  v.  Bulmer  551 

Latham  r.  Henderson  126 

Lathrop  v.  Bampton  828,  835,  843 

V.  Gilbert  127 

V.  Hovt  134,  135 
V.  I'ollard  195 

V.  Smalley  276,  459,  472,  900, 

903,  918 
Latimer  v.  Hanson  262,  264,  268,  492 
Latoucii  I'.  Laeom  593 

Latouche  v.  Dimsany  876 

Latourette  v.  Williams  640 

Latrobe  i\  Baltimore  331 

f.  Tiernan  411,  415 

Lauglilin  ;;.  Fairbanks  438 

Laurens  v.  Jenney  299,  806,  3(»9 

V.  Lucas  795 

Lauriat  i".  Stratton  873 

Lavender  i'.  Stanton  582,  610,  793 

Laver  v.  Fielder  208 


INDEX   TO    CASES   CITED. 


Ixxxix 


Law  V.  Barchard 

V.  Mills 

V.  Skinner 
Lawless  v.  Shaw 
Lawley  v.  Hooper 
Lawrence  v.  Bowie 
V.  Cooke 

V.  Davis 

V.  Farmer's  Loan  & 

V.  Lawrence 

V.  Maggs 

V.  Stratton 

V.  Trustees,  &c. 
Lawrie  v.  Banks 
Lawry  v.  McGee 

Laws  V.  Law 

Lawson  v.  Campion 

V.  Copeland 

V.  Lawson 

V.  Morton 
Lawton  v.  Ford 
Lay  ('.  Brown 

V.  Duckett 

Laytin  v.  Davidsun 

Layton  v.  Layton 
Lazarus  v.  Bryson 
Lea  V.  Grundy 
Lea's  Appeal 

Leach  v.  Asher 

Leach  ?>.  Ausbacker 

V.  Farr 

V.  Leach       112,  117, 

Leadinan  v.  Harris 
Leake  i'.  Leake 

V.  Robinson  160, 

Leakey  v.  Gunter 
Lear  v.  Leggett 

V.  Tritch 

Learned  v.  Welton 
Leavitt  v.  Beirne         508, 

V.  Pec4 

V.  Wooster 
Leaycraft  )'.  Hedden 
Leazure  v.  Hillegas 
Lechmere  v.  Brotheridge 

V.  Carlisle 

V.  Charlton 

V.  Lavie 
Leilge  I'.  Morse 
Ledlie  v.  Vrooman 
Ledyard  v.  Chapin 
Lee  V.  Alston 

V.  Balcarras 

V.  Brown      476,  615, 

V.  Delane 
V.  Egremont 
V.  Fernie 
I'.  Ferris 


Section 

183 

586 

690 

120 

169 

848,  876,  903 

121 

593 

Trust  Co. 

602  c,  602  q 

75,  134 

533 

222 

855 

311 

97 

126 

185 

900 

76,  511  c 

324 

863 

627 

812 

171,  918 

631,  636 

205 

665 

586 

850  a 

814 

104 

118,  119,  195, 

620 

591 

15,  321 

,  383,  616,  622 

75 

388,  555 

137,  795 

412 

,511,655,660 

680,  768 

562,  571,  796 

655 

45 

656 

98,  367,  858 

577 

112,  113,  116 

139 

680 

602  a: 

871 

530 

618,  619,  624, 

915 

476  a,  928 

632 

511a 

77,  83,  93 


Section 

Lee  V.  Fox  127 

V.  Huntoon  77,  83 

V.  Lee  464 

v.  Pennington  918 

V.  Prideaux  647,  648 

V.  Randolph  240,  280 

V.  Sankey  806 

t;.  Stuart  34 

V.  Young      276,  508,  509,  510,  511 

Leech  v.  Leech  107,  584 

Leed  v.  Beene  863 

Leedham  v.  Chawmer        907,  909,  910 

Leedom  v.  Plymouth  Railway  757 

Leeds  v.  Amherst       446,  540,  869,  870 


V.  Munday 

V.  Wakefield 
Leeds  Banking  Co. 
Leeke  v.  Bennett 
Lees  V.  Nuttall 

V.  Sanderson 
Leferve  v.  Leferve 
Leffler  v.  Armstrong 
Le  Fort  v.  Delafield 
Lefroy  v.  Flood 
Legard  v.  Hodges 

V.  Johnson 
Legare  v.  Ashe 
Legatt  V.  Sew  ell 
Legg  i\  Gold  wire 


V.  Mackrell 
Legge  i;.  Asgill 
Leggett  V.  Dubois 
V.  Grinmiett 

V.  Hunter 
V.  Leggett 

V.  Perkins 
Legh  V.  Legh 


336,  337 

493,  784 

654,  659 

541 

206 

422 

748 

260,  602  r 

245 

112,  116 

82,  122 

673 

183 

366 

361 

639 

271 

699,  705,  712 

64,  131,  140 

296,  297 

273,  281,  404,  414,  610 

133 

305 

;o 


Lehmann  r.  Rothbarth  128,  468 

Leicester  v.  Foxcroft  182 

V.  Rose  212 

Leichrist's  Appeal  135 

Leigh  V.  Ashburton  769 


411,  415,  416,  417,  421 
117 
768 
65,  126,  131 

202 


V.  Barry 

V.  Leigh 

V.  Lloyd 
Leiper  v.  Hoffman 
Leisenring  v.  Black 
Leitch  V.  Wells 
Leith  V.  Irwin 
Leith  Banking  Co.  v.  Bell 
Le  Jeune  v.  Budd 
Leland  v.  Hayden 
Le  Maitre  v.  Bannister 
Le  Marchant  i'.  Le  Marchant 

Leman  ;;.  Sherman  

Leman  v.  Whitley  76,  83,  162,  226,  232 
Lemmond  v.  People  160,  900 

Lenaghan  v.  Smith  882 

Lench  v.  Lench  127,  128,  137,  138, 

836,  839 


223,  814 
905 
179 
517 
545 
116 
113 
296 


113, 


xc 


INDEX   TO    CASES   CITED. 


Section 

Le  Neve  v.  Le  Neve  217,  222,  223 

Lengonfitter  c.  Kitcliing  210 

Lcnnard  v.  Curzoii  876 

Lent  V.  Howard  452 

Leonard  v.  Bell  391,  748 

i:  Diamond  309 

V.  Ford  602  h 

v.  Green  133,  149 

V.  Leonard  185 

V.  Sussex  369 

I'.  Powell  915 

Le  Page  v.  McNamara  724,  748 

Le  Prince  '•-  Guillemont  592,  594 

Lerow  v.  Wilmarth  487,  553 

Leslie  v.  Bailie  927 

V.  Devonshire  159 

V.  Gutlirie  68,  345 

Lester  v.  Frazer  34 

r.  Garland  395 

L'Estrange  v.  L'Estrange  69 

Letcli  V.  HoUister  159 

Letcher  v.  Letcher  126,  132,  137 

Le  Vasseux  v.  Scratton  641 

Lever  v.  Andrews  126 

Levering  v.  Heighe  34 

I'.  Levering  34 

Levet  V.  Needham  150,  152 

Levy  V.  Commonwealth  748 

V.  Home  750 

V.  Levy            41,  45,  384,  716,  738, 

741,  748 

Lewellin  v.  Cobbald  213,  820 

Lewes,  Re  929 

i;.  Lewes  119,  388,  555 

Lewin's  Trusts,  In  re  633 

Lewis,  Ex  parte  774 

V.  Adams  647 

V.  Baird  259,  261 

V.  Beacon  559 

V.  Beall  299 

V.  Bradford  221 

V.  Building  &  Loan  Assoc.  126 

V.  Castleman  864 

V.  Covillaud  238 

V.  Darling  570,  571 

V.  Hill  475 

V.  Hillman  202,  206 

V.  James  324 

V.  Johns  678 

V.  Lewis  76 
V.  Haddocks         122,  837,  841,  842 

V.  McLemore  171 

V.  Mathews         272,  337,  648,  649, 
651 

V.  Nelson  21,  71 

V.  Nobbs  422 

V.  Pead  190 

V.  Phillips  221 

V.  Price  639 

V.  Reed  404,  409 

V.  Rees  319 


Lewis  V.  Robinson 
V.  Scaperton 
V.  Starke 
V.  Thornton 
Yale 


Section 
141 
286 
347 
562 
660 


Library  Company  of  Philadelphia 

I'.  Williams  611  a 

Liddard  v.  Liddard  112 

Lidderdale  v.  Montrose  69 

Lide  i;.  Law  186 

Life  Assoc,  v.  Siddall        265,  337,  476, 

846,  849,  850,  853,  860,  863,  869 

LifHer  v.  Armstrong  602  e 

Light  V.  Scott  104 

Liggett  V.  Wall  217 

Lignon  v.  Alexander  234 

Like  V.  Bearsford  636 

Liley  v.  Hey  113,  255,  710,  732 

Lill  v.  Neafie  275 

Lillard  v.  Turner  660 

Lillia  V.  Ayre  655,  657 

Linch  1-.  Cappey  464 

V.  Thomas  874 

Lincoln  v.  Aldrich  476  a 

Lincoln  v.  Allen  468 

V.  Newcastle       359,  360,  373,  389, 
390 

V.  Winsor  432,  895,  904 

V.  Wright      226,  418,  419,  424,  848 


Lindenberger  v.  Metlock 
Lindley  v.  Cross 
Lindo  V.  Lindo 
Lindow  v.  Fleetwood 
Lindsay  v.  Harrison 

V.  Lindsay 
Lindsell  i\  T  hacker 
Lines  v.  Darden 
Lingan  i\  Henderson 
Lingard  v.  Bromley 
Lingenfelter  v.  Richey 
Lining  v.  Peyton 

Link  r.  Link 

Linker  v.  Smith 
Linley  v.  Taj'lor 
Linsley  v.  Sinclair 
Linton  i'.  Boley 
Linville  v.  Golding 
Lippincott  v.  Barber 
V.  Evens 

V.  Lippincott 

V.  Ridgway 

V.  Warder 

Lipscomb  v.  Nichols 

Liptrot  V.  Holmes 
Lister  v.  Hodgson 

i".  Lister 

V.  Peckford 
Litchfield  v.  Baker 

V.  Pickering 

V.  White 
Litt  V.  Randall 


705 

680 

186 

288,  375 

646,  653 

863 

336,  337,  648 

116,  253 

84,  234 

848,  876,  879 

226 

598,  794 

75 

213 

908 

142 

598,602.9 

299 

692 

815  6 

501 

254 

541 

126 

320 

97,  98,  102 

195,  198,  635 

864 

449,  451,  547 

547 

417,  590,  914 

385 


INDEX   TO    CASES   CITED. 


XCl 


Section 

Section 

Littell  V.  Grady 

171,  848 

Lockwood  V.  Stockholm 

576 

Little  V.  Bennett 

284 

Lockyer  v.  Savage 

888,  555 

V.  Brown 

237 

Locton  V.  Locton 

121 

V.  Thome 

476  a 

Loddington  v.  Kline 

597 

V.  Wilcox 

24 

Lodge  V.  Hamilton 

639 

V.  Willford 

701 

Loften  V.  Witboard 

127 

Littlefield  v.  Cole 

611 

Logan  V.  Birkett 

672 

V.  Smith 

438 

V.  Deshay 

56y 

Littlehales  v.  Gascoigne 

468,  903 

V.  Fairlee 

623 

Little  Rock  &  F 

.  S. 

Ry.  Co.  V. 

V.  Fontaine 

918 

Page 

129 

V.  Logan 

918 

Litton  V.  Baldwin 

655,  661,  900 

V.  Simmons 

213 

Livermore  v.  Aldrich 

126,  137,  138 

Lomax  v.  Lomax 

616,  619 

V.  Jen  ekes 

592 

V.  Pendleton 

462,  468 

Livesay  v.  Livesay 

931 

V.Ripley    77,83 

84, 

93,159,511a 

Livingston,  In  re 

282 

Londenschlager  v.  Bentor 

1 

759 

Pet'r 

282 

Londesborough  v.  Somerville 

544 

V.  Ball 

592 

London  v.  Garway 

157 

V.  Livingston 

38,  48,  51,  95,  277, 

V.  Richmond 

885 

562 

564,  565,  566 

London  Bridge,  In  re 

787 

V.  Newkirk 

562,  566 

London  Gas  Light  Co.  v 

.  Spottis- 

V.  Stickles 

537 

wood 

877 

V.  Wells 

468,  471 

London  R.  Co.  v.  Winter 

226 

Livingston's  Case 

918 

Long  V.  Blackall 

379 

Llewellin  v.  Mackworth 

858,  863 

V.  Cason 

621,  868 

Llewellyn's  Trusts 

451,  551 

V.  Clapton 

431 

Lloyd  V.  Attwood 

851 

V.  Dennis 

512,  515 

V.  Baldwin 

597 

795,  796,  800 

V.  Fox 

171,  843 

V.  Banks 

438 

V.  Israel 

891 

V.  Branton 

512,  513,  514 

V.  Long 

286, 

520 

615,  796 

V.  Brooks 

97 

V.  Mathieson 

752 

V.  Carew 

379 

V.  Norcom 

618 

V.  Carter 

126,  137 

V.  Rankin 

784 

V.  Currin 

215 

V.  Ricketts    . 

514,  517 

V.  Goold 

112,  487 

V.  Serger 

126 

V.  Griffiths 

787 

V.  White 

647 

660,  855 

V.  Hart 

605,  611 

Longford  v.  Eyre 

5116 

V.  Inglis 

76 

Longley  v.  Hall 

918 

V.  Lloyd 

388,  555,  706 

V.  Longley 

157 

V.  Loaring 

885 

Longman  v.  Brown 

714 

V.  Lynch 

137 

Longmate  v.  Ledger 

189 

V.  Read         130, 

144 

145,  146,  147 

Longmore  v.  Broom 

251, 

255,  258, 

V.  Rowe 

918 

468,  507 

V.  Spil'ett       88, 

125, 

126,  138,  151, 

V.  Elcum       112, 

116, 

117 

118,  620 

152,  162,  900 

V.  Taylor  501 

V.  Williams  600,  645 

Lobdell  V.  Hayes  324 

Lock  V.  Lock  532,  533 

Locke  V.  Lomas  475,  597,  794,  799,  806 

Lockey  v.  Lockey  871 

Lockhart  v.  Canfleld  328 

V.  Hardy  119 

V.  Northington  499,  501 

V.  Reilly        260,  457,  467,  848,  876 

V.  Wyatt  590,  591 

Lockridge  v.  Foster  171 

Lockwood  r.  Abdy  246,  907 

V.  Canfield  75 

V.  Fenton  623 

V.  Riley  418 


Longwith  v.  Butler  602  c,  602  x 

Longworth  v.  Goforth  205 

Longworth's  Estate  556 

Lonsdale  v.  Beckett  291 

V.  Berchtoldt  119 

Lonsdale's  Estate  100 

Loomis  V.  Lift  212 

V.  Loomis  134,  438 

V.  McClintock  783 

V.  Spencer  56 

Loomis's  Appeal  673 

Lord  V.  Bishop  127 

Lord  V.  Bunn  386  b,  555,  807 

V.  Brooks  545 

V.  Fisher  58U 

V.  Godfrey  451,  508,  509,  547 

Lord  Antrim  v.  Buckingham  48 


XCll 


INDEX   TO    CASES   CITED. 


Lord  Paget's  Ciise 
Lord  8and\vicli's  Case 
Lorillard  v.  Coster 
Loring,  £".r  parte 

(■r  Blake 
r.  Brodie 

I'.  Elliott 

V.  Hunter 

V.  Loring 
v.  Palmer 

V.  Salisbury  Mills 

V.  Steinnian 


Section 

685 

511a 

380 

236 

381,  490,  507,  5U8 

511  i 

152 

359,  370 

117,  38t5  a,  620 

82 

242,  670 

476  a,  928 


United  States  Co.  588 
Lorings  i;.  Marsh         499,  721,  724,  731 

Lorman  ;'.  Clarke  855 

Loscombe  v.  Wintringham  705,  725, 

729 

Lesley  v.  Losley  817 

Loss  v.  Obry  186 

Lothrop  V.  King  212,  591 

Lott  V.  Kaiser  171 

Louch,  Ex  parte  587 
Lounsbury  i-.  Purdy      58,  126,  133,  142 

Lovat  V.  Leeds  527 

Lovatt  V.  Knipe  194 

Love  V.  Gaze  94,  150 

V.  Love  855,  858 

V.  Morris  910 

V.  Robertson  676 

Lovegrove,  Ex  parte  910 

Lovell  V.  Minot  456 

Loveman  v.  Taylor  918 

Loveridge  v.  Cooper  438,  926 

Lovering  v.  Minot  551 

V.  Worthington  382 

Low  I'.  Barchard  187 

V.  Brinnan  764 

V.  Carter  846,  924 

V.  Manners  514 

Lowden  v.  Lowden  841 

Lowe  V.  iSIorgan  873 

V.  Morris  918 

V.  Peers  516 

Lowell  V.  North  602  o 

Lowell's  Appeal  700 

Lowndes  v.  Garnett  &  Mosely  Co.    752 

V.  Lane  173,  176 

V.  Lowndes  616 

Lowrie's  Appeal  891,  918 

Lowry  v.  Commercial  Bank  242 

V.    Commercial    &    Farmers' 

Bank  814 

r.  Farmers'  Bank  225 
V.  Fulton               259,  261,  401,  463 


V.  Houston 

V.  Tiernan 
Lowson  V.  Copeland 
Lowther  v.  Charlton 

V.  Lowther 
Lucas  V.  Atwood 

V,  Brandreth 


641 
768 
4b8,  440,  465 
222 
206 
594 
357 


Section 

Lucas  V.  Doe  500 

V.  Harris  602  w 

V.  Lockhart  112,  117,  2-18 

V.  Oliver  602  v 

V.  Putney  754 

V.  Sanbury  &  Erie  R.  R.  Co.       589 

Luckett  V.  White  570 

Luckin  v.  Rushworth  196 

Lucknow  V.  Brown  613 

Ludlam  i-.  High  733 

Ludlow  1-.  Flournoy  171 

Ludlow  V.  Greenhouse      693,  724,  732, 

896 

V.  Hurd  159 

Ludwig  V.  Highley  58,  334 

Luke  V.  Kelmorev  119 

Luken's  Appeal    463,  468, 851,  918,  919 


Lumb  V.  Milnes 

634,  649 

Lund  v.  Blanshard 

877 

V.  Lund 

463,  468 

Lunhani  r.  Blundell 

443 

Lupton  r.  Lupton        562 

569 

570,  796 

V.  White 

447 

Luscomb  V.  Ballard 

262,  812 

Lush  V.  Wilkinson 

149 

Lush's  Trusts 

634 

Lusk  V.  Lewis 

715 

Lusk's  App. 

195 

Luther  v.  Bianconi          8 

440 

5.32,  845 

Lutheran   Cong.  v.   St. 

Vlichael's 

Church 

7.33 

Luttrell  r.  Olmius 

181,  211 

Lyddon  v.  Ellison 

376 

V.  Moss 

869 

Lyford  v.  Thurston 

137 

217,  828 

Lygon  v.  Lord 

615 

Lyles  V.  Hattan 

468 

Lyman  v.  Parsons 

508 

Lyn  i:  Ashton 

679 

Lynch  v.  Cox 

126 

V.  Dearth 

237 

V.  Swayne 

520 

Lyne,  Ex  parte 

414 

V. 

648,  652 

V.  Crouse 

661 

V.  Guardian 

182 

Lyne's  Ex'rs  v.  Crouse 

652 

Lynn  v.  Beaver 

94 

i;.  Bradley 

639 

V.  Lynn 

134 

Lynn's  Appeal 

540 

Lyon  V.  Baker 

432,904 

V.  Foscue 

918 

V.  Lyon 

195, 

205,  428 

V.  Marclay 

863 

V.  Richmond 

184,  226 

V.  Saunders 

184 

V.  Swayne 

680 

Lyons  v.  Beard 

918 

V.  Bodenhamer 

217 

V.  Chamberlin 

468 

INDEX   TO    CASES   CITED. 


XClll 


Lyons  v.  Jones 
Lypet  V.  Carier 
Lysaglit  V.  lioysse 
Lyse  V.  Kingdom 

Lyster  v.  Burroughs 
Lytle's  Appeal 


Section 

(502  V 

569,  570 

511  a 

457,  462,  520,  818, 

876,  877,  900 

122 

680 


M. 

Maberly  v.  Turton  249,  255,  615 

Mabie  v.  Bailey  82 

Macartney  v.  Blackwood  872 

Macaulay  v.  Phillips         630,  632,  633, 

639,  645 

MacCubbin  v.  Cromwell        79.  82,  84, 

85,  259,  261,  262, 

404,  416,  420.  8ctO 

417 

112 

555 

328 

108 

562 

602. /f- 

215 

438 

585 

900 

665 

591 

439,  450,  551 

72 

741 

217,  232, 


Macdonnell  v.  Harding 
Macey  v.  Shurmer 
Mackason's  Appeal 
Mackay  v.  Coates 

V.  Douglass 

V.  Green 

V.  Langley 

V.  Martin 
Macken  r.  Hogan 
Mackenzie  v.  Mackenzie 

V.  Taylor 
Mackey  v.  Maturin 
Mackie  v.  Cairnes 

V.  Mackie 
Mackintosh  v.  Ogilvie 

V.  Townsend 
Mackreth  v.  Symmons 


233,  235,  236,  239 
Mackworth  v.  Hinxman  380 

Maclaren  v.  Stainton  72 

Maclary  v.  Rezner  178 

Maclay  v.  Love  662,  676,  685 

Macleod  v.  Annesley  457 

Macnab  v.  Whitbread  112 

Macomb  v.  Kearney  766 

Macon,  &c.  Railway  v.  Parker  575 

Macpherson  v.  Macpherson  550 

Maddeford  v.  Austwick  178,  210 


Maddison  v.  Andrew 


Maddocks  v.  Wren 
Maddox  v.  Allen 

V.  Maddox 

V.  Staine 
Madox  V.  Jackson 
Maennel  v.  Murdock 
Maffit  V.  Rynd 
Magdalen  College  v.  Att'y-Gen.      737, 

866 
Magdalcna  Steam  Nav.  Co.,  In  re  754 
Magce  )•.  CarjK'nter  602  cl 

V.  Cowpcrthwaite  918 


139,  144,  251, 
507,  510 
243 
858 
512,  515,  555 
379 
250,  878 
590,  591 
86 


Magill  V.  Brown  46,  606,  699, 
704,  715,  721, 
Magruder  v.  Peter  232, 

Maguiac  v.  Thompson 
Maguire  v.  Scully 
Magwood  V.  Johnston 
Mahan  v.  Mahan 
Mahar  v.  O'Hara 
Mahlor  v.  Lees 
Mahon  v.  Savage  255, 

V.  Stanhope 
Mahony  r.  Hunler 
Mahorner  i;.  Harrison 
Mais,  In  re 
Maitland  v.  Backhouse 

V.  Bateman 

V.  Irving 

V.  Wilson 

Major  V.  Herndon 

Major  V.  Lansley 

V.  Sommes 
Makepeace  v.  Rogers 
Malcolm  v.  O'Callaghan   513, 

Malins,  In  re 

V.  Barker 

V.  Keighley 

V.  Malin  38,  82,  137 

Mallabar  v.  Mallabar         150, 
Mallalieu  v.  Hodgson 
Mallet  V.  Smith 
Mallory  v.  Mallory 
Malone  v.  Geraghty 

V.  O'Connor 
Maloney  v.  Kennedy 

V.  Kernan 

V.  L'Estrange 
Maltby's  Case 
Malzy  V.  Edge 
Man  V.  Warner 
Manahan  v.  Gibbons 
Manby  v.  Bewicke 
Manchester  v.  Bonhanr 

V.  ManchesttT 

V.  Mathewson 

V.  Saliler 
Manchester  School  Case 

Manderson's  App. 

Mandeville  v.  Solomon 

Manes  v.  Durant 

Mangles  v.  Dixon 

Manice  v.  Manice 

Manion  v.  Titsworth  641 

Manly  v.  Slason         232,  233, 

Mann  r.  Ballott 

V.  Betterly 

V.  Darlington 

i\  Ricketts 

Mannen  v.  Bradberry 

Manners  i-.  Furze 


Section 

700,  701, 

730,  748 

238,  501 
184 

360,  361 
661 

109,  111 
576 
226 

256,  699 

539,  777 
262 
126 
275 
201 
440 
201 
219 
93 

647,  656 

680,  685 
863 

514,  517. 
910 
774 
112 

112,  116 
, 189,  227 

151,  900 
212 
499 
127 

845,  878 
112 

664,  668 
217 

229,  230 
179 

261,  267 
559 
416 
868 
903  a 
328 
855 
680 
725 
815  6 
211 
213 

438,  831 

305 

,  863,  865 

236,  237, 
239 
733 

187,  189 
212 
863 
843 
818 


XCIV 


INDEX  TO    CASES   CITED. 


Section 

Manning  v.  Albee  173 

V.  Cox  330,  520 

V.  Manning  429,  462,  464,  408, 

900,  916 

V.  Spooner  563 

V.  Tliesiger  881,  885 

V.  VVopp  118 

Mannings  v.  Randolph  556 

Maunsell  v.  Hedges  208 

V.  Mansell        217,  241,  344,  509  h, 

784,  828,  844 

Mansell  v.  Vaughn  414,  491,  505 

Manser  v.  Dix  768 

Mansfield  v.  Mansfield  602  h,  672 

V.  Shaw  816,  818 

Mansfield's  Case  189 

Manson  v.  Baillie  401,  432 

Mant  V.  Leith  458,  460,  467,  655 

Manuf.  &  Meeh.  Bank  v.  Bank  of 

Penn.  589 

Mapp  V.  Elcock  152,  157 

Mapps  V.  Sharpe  199,  602  v 

V.  Tyler  766 

Mara  v.  Manning  969 

March  t".  Berrier  611 

V.  Eastern  R.  R.  Co  545 

V.  Head  633,  636 

V.  Russell  467,  846,  851,  867 

Marcy  v.  Amazeen  82 

Mare  v.  Sandford  591 

Marfield  v.  Ross  602  z 

Margetts  v.  Barringer  648 

V.  Perks  418 

Marigny  v.  Remy  593 

Marine  Fire  Ins.  Co.  v.  Early  232 

Marker  r.  Marker  540,  851 

Markley  v.  Singletary  648 

Marks  v.  Morris  602  ee 

Markwell  v.  Markwell  104 

Marlborough  v.  Godolphin         93,  252, 

383,  507,  508,  714 

V.  St.  John  477,  552 

Maries  v.  Cooper  218 

Mario w  v.  Johnson  602  _/f 

Marples  i'.  Bainbridge  512,  516 

Marr  v.  Gilman  351 

V.  Peay  270 

Marrett  v.  Paske  428 

Marrick  xi.  Grice  667 

Marriott  v.  Kinnersley  402,  845 

V.  Marriott  182 

Marryatt  v.  Marryatt  280,  826 

V.  Townley         359,  361,  364,  366, 

371,  374 

Marsden's  Trusts,  In  re  511  a 

Marsh  v.  Alford  680 

V.  Att'y-Gen.  724 

V.  Hunter  469 

V.  Marsh  562,  647,  666,  684 

V.  Means  700,  724,  726 

V.  OUver  863 


Section 

Marsh  v.  Putnam 

72 

V.  Renton 

721,  725 

V.  Turner 

232 

V.  Wells 

536 

V.  Wheeler 

160,  765 

Marshall,  Ex  parte 

337 

V.  Baltimore  &  Ohio  Railway   214 

V.  Blew 

542 

V.  Bousley 

366 

V.  Brenner 

451 

V.  Carson 

195 

V.  Christmas 

232,  237 

V.  Collett 

184 

V.  Fisk 

299,  302 

V.  Fowler 

633,  636 

V.  Frank 

219 

V.  Gibbings 

632 

V.  HoUoway        169, 

393,  395,  619, 

906,  918 

V.  Lovelass 

55 

V.  Miller 

680 

V.  Sladden     282,  297,  329,  539,  769, 

777 

V.  Stevens             195 

655,  661,  782 

Marsteller's  Appeal 

918 

Martelli  v.  HoUoway 

381 

Martidall  v.  Martin 

693 

Martin  v.  Aliter 

602  rf 

Martin  v.  Baldwin 

815  6 

Martin  v.  Bell 

648,  649 

V.  Blight 

172 

V.  Coles 

243 

V.  Frye 

562,  563 

V.  Funk 

99 

V.  Graves 

167 

V.  Greer 

127,  836 

V.  Jackson 

863 

r.  Joliiie 

830 

V.  Margham        388, 

396,  399.  709, 

725,  738 

V.  Martm         71,  72, 

142,  364,  427, 

629 

631,  635,  843 

V.  McCord 

748 

V.  Mitchell 

645 

V.  Morgan 

178,  179 

V.  Parnell 

881 

V,  Persse 

898 

V.  Ramsey 

100 

V.  Raybom 

454,  468 

V.  Read 

873 

V.  Sedgwick 

438 

V.  Sherman 

645 

V.  Smith 

334,  861 

V.  Swannell 

248 

Martin's  Appeal 

652,  618 

Martindale  v.  Picquot 

416 

Martzell  v.  Stauffer     . 

843 

Marvin  v.  Brooks 

133 

Mar  wood  v.  Darell 

301 

Maryland  Ins.  Co.  v.  Dalrymple       199 

Mason  v.  Baker 

165 

INDEX   TO    CASES   CITED. 


XCV 


Section 

Mason  v.  Bank  of  Commerce    766, 

794 
Mason  v.  Chambers  70 

V.  Crosby  171,  230 

V.  Dry  611 

V.  Jones  508,  620 

V.  Limburg  112 

V.  Martin  428,  785 

V.  Mason  347, 508, 511, 611, 858, 859 


V.  McNeill 

639,  640 

•   V.  Morgan 

640 

V.  Morley 

446 

V.  Rosevelt 

918 

V.  Smallwood 

299 

V.  Wait                 404 

409 

606,  609 

V.  Whitehorn 

443,  444 

V.  Williams 

189 

Mass.  Gen.  Hosp.  v.  Amory 

275,  286 

Mass.  Public  Statutes 

682 

Massenburgh  v.  Ash. 

379,  382 

Massett  v.  Pocock 

894 

Massey  v.  Banner      406, 

441, 

443,  444, 

463 

901,  914 

V.  Davies 

206 

V.  Huntington 

98,  99 

V.  Mcllwaine 

217 

V.  O'Dell 

803 

V.  Parker     646,  647, 

648, 

652,  653, 
671 

V.  Sherman 

112 

Massie  v.  Watts 

70,  71,  72 

Massy  v.  Stout 

276 

Master  v.  DeCroismar 

64,  364 

V.  Fuller 

657,  658 

Masters  v.  Masters 

572,  573 

Mastin  v.  Barnard 

262 

Mather  v.  Bennett 

863 

V.  Norton 

796,  801 

V.  Thomas 

338 

Mathers  v.  Prestman 

780 

Mathes  v.  Bennett 

463 

Mathew  v.  Hanbury 

171 

Mathews  v.  Bliss 

178,  180 

V.  Brise                 443 

444 

461,  463 

V.  Guess 

639 

V.  Heyward 

458 

V.  Keble 

393 

V.  Masters 

706 

V.  Mathews 

421 

Mathias  v.  Mathias 

841 

Mathis  V.  Mathis 

918 

Mathison  v.  Clarke 

431 

,  432,  904 

Mattex  V.  Weand 

237 

Matthew  v.  Brise 

871 

V.  Holman 

610 

V.  Marow 

724 

Matthews  v.  Bagshaw 

905 

V.  Dellicker 

827  a 

V.  Dragand 

195,  915 

V.  Leainan 

85 

V.  McPhcrson 

328,  329 

VOL.  i.  —  y 

Section 

Matthews  v.  Ward    6, 17,  299,  301,  321, 

327,  328,  349,  436,  520 

Matthie  v.  Edwards  602  o,  602  s,  602  ee, 

770,  782 

Mattox  V.  Eberhart  780 

Maud  V.  Maud  112 

Maul  V.  Reder  210,  223,  851 

V.  Rider  851 

Mauldin  v.  Armstead     264,  343,  602  e, 

602  771 

Maundrell  v.  Maundrell  611  c 

Maundy  v.  Maundy  182 

Maunsell  v.  Hedges  208 

Maupin  v.  Delany  618 

Maverick,  &c.  Soc.  v.  Lovejoy         243 

Mayor  v.  Davenport  260 

V.  Nixon  732 

Maw  V.  Pearson  246 

Maxwell  v.  Finnic  275 

V.  Kennedy  229,  230 

V.  Pittinger  191 

V.  Wettenhall  600 

May  V.  Armstrong  900 

i;.  Frazer  404,  500 

V.  Selby  884 

V.  Steele  126 

V.  Taylor  328 

May's  Heirs  v.  Frazer  779 

Mayberry  v.  Neely  649 

Maybury  v.  Brien  323 

Mayd  v.  Field  652 

Mayer  v.  Galluchat  432,  661,  895 

V.  Gould  848 

V.  Montreon        509,  826,  827,  877, 

884 

V.  Pullan  602  e 

V.  Townsend  360 

Mayfield  v.  Clifton  639 

V.  Donovan  275 

V.  Kegour  329 

Mayham  v.  Coombs  232,  236 

Mayhew  v.  Crickett  210 

Maynard  v.  Cleveland  437  a 

Maynard  v.  Williams  676 

Maynel  i'.  Massey  681 

Mayor  v.  Williams  223 

Mayor  of  Coventry  i\  Att'y-Gen.    42, 

•    275 
Mayor  of  London's  Case  694,  699 

Mayor  of  Lyons  v.  East  India  Co.  741 
Mayor  of  South  Molton  v.  Att'y- 
Gen.  745 
Maywood  v.  Lubcock  218 
Mazyck  v.  Vanderhost  380 
McAdam  v.  Logan  294 
McAfee  v.  Ferguson                            213 
McAllister  v.  Barry  171 
V.  Commonwealth                       463 
V.  Marshall                                   591 
V.  Montgomery  136 
McAlpin  V.  Burnett            232,  238,  239 


XCVl 


INDEX   TO    CASES   CITED. 


Section 

Section 

McArtee  v.  Eii^art 

187 

McCown  V.  Jones 

237 

McAuley  v.  AVilson 

724 

726 

McCoy  V.  Horwitz 

456 

McBee  v.  Loftos 

221 

McCoy  V.  Poor 

860,  861 

McBride  v.  Porter 

733 

McCoy  V.  Scott 

245 

V.  Smyth                            310  a 

652 

McC'rahen  v.  McCrahen 

918 

McBurncy  v.  Carson 

456 

McCraw  v.  Davis 

189 

McCalian's  Appeal 

459 

918 

McCrea  v.  Purmont 

843,  855 

McCall  V.  Coover 

231 

McCreery  v.  Hamlin 

780 

V.  Harrison 

244 

McCrocklin  v.  McCrocklin 

672 

V.  Hinkley 

592 

McCrory  v.  Foster 

127,  640 

V.  Parker 

83 

McCue  V.  Gallagher 

139 

V.  Peachy 

460 

918 

McCuUoch  V.  Cow  her 

172 

V.  Rogers 

828 

V.  Hutchinson 

591 

McCallam  v.  Carswell 

803 

McCuUough's  Appeal 

514 

McCall's  Estate 

471 

McCullum  V.  Coxe 

330 

McCalmont  v.  Rankin 

226 

McDermott  f.  Kealy 

616 

McCanimon  v.  Petitt 

138 

V.  Lorillard 

782 

McCampbell  i'.  McCampbell 

562 

V.  Strong 

594 

McCandless  v.  Warner 

82 

McDonald  v.  Black 

118 

McCandless's  Estate 

863 

V.  Bryce 

160,  397 

McCandiish  v.  Keen 

235 

V.  Hanson 

774 

McCants  v.  Bee 

199 

V.  King 

500 

McCarogher  v.  Whieldon 

773 

806 

V.  May 

230 

McCartee  v.  Orph.  Asy.  Soc. 

38 

748 

V.  McDonald 

132,  863 

V.  Teller 

34 

V.  Neilson 

187 

McCarter  v.  Cornel 

855 

V.  Richardson 

430 

McCarthy  v.  Decaix 

184 

851 

V.  Sims 

863 

V.  Gould 

69 

V.  Walgrove 

546 

V.  McCarthy 

863 

V.  Walker 

339, 

340,  494 

V.  Tyle 

861 

McDonnell  y.  Harding 

443,  463 

McCartney  v.  Bostwick      17, 

126, 

142, 

V.  Hesilrigde 

213 

149 

240 

McDonough  v.  McDonough 

736 

V.  Calhoun 

195 

V.  Murdoch        41,  42 

,43, 

126,  142 

McCarty  v.  Blevins 

67 

McDougald  v.  Gary 

34 1 

V.  Pruet 

282 

V.  Dougherty 

594 

McCaskey  v.  Graff 

215 

McDowell  v.  Brantley 

817 

McCaskill  v.  Lathrop  &  Co.   S 

315c 

McDowell  V.  Caldwell 

618 

,911,918 

McCauly  v.  Givens 

757 

V.  Goldsmith 

229, 

230,  863 

McCauseland's  Appeal 

918 

V.  Lawless 

562 

McCaw  V.  Blunt 

918 

V.  Peyton 

182 

V.  Galbraith    64,  181,  305 

827 

436 

I'.  Potter 

639 

McClain  v.  McCIain 

226 

McElhenny's  Appeal  469, 

471, 

891,  910 

McClanahan  i'.  Henderson 

538 

McElvoy  r.  McElvoy 

152, 

312,  359 

McClane  v.  Shepherd 

865 

McFadden  v.  Jenkyns    86 

,96, 

102,  105 

McClintie  v.  Ochiltree 

655 

McFarland's  Appeal 

511a 

McClintock  v.  Irvine 

357 

McFerrin  v.  White 

680 

McClug  V.  Lecky 

591 

McGachen  v.  Dew      438, 

467, 

878,  885 

McClure  v.  Miller 

98 

213 

McGar  v.  Nixon 

456 

('.  Purcell 

165 

McGarger  v.  Nogles 

320,  652 

McClurg  V.  Wilson 

520 

McGaughey  v.  Brown 

195 

McCluse  V.  Doak 

132 

McGill,  In  re 

238 

McColgham  v.  Hopkins 

585 

V.  Doe 

328 

McCollough  V.  Sommerville 

585 

McGinity  v.  McGinity 

137 

McComas  v.  Long 

128 

McGinn  v.  Shaeffer 

890 

McCombie  r.  Davis 

243 

McGinness  v.  Barton 

75 

McCord  V.  O'Chiltree          701 

724 

748 

McGirr  v.  Aaron 

731,  748 

McCormick  v.  Garnett 

632 

McGivney  v.  McGiv 

ney 

141,  870 

V.  Grogan 

181 

McGlaughlin  v.  McGlaughlin 

570 

V.  Malin 

187 

McGlinsej-'s  Appeal 

665,  666 

McCosker  v.  Brady             280 

305 

341 

McGovern  v.  Knox 

82, 

126,  144 

V.  Golden 

668 

McGowan  v.  Gowan     126 

132 

133,  ISl 

INDEX   TO    CASES   CITED. 


XCVll 


Section 

Section 

McGregor  v.  Gardner 

206 

McLeod  V.  Drummond 

225 

809,  810, 

y/Hall                   602  (/,  602 /,  602  / 

811 

814,  815 

V.  McGregor 

884 

V.  First  National  Bank 

828,  836 

McGuire  v.  McGowan 

126,  139 

McLoud  V.  Burchall 

562 

V.  Ramsey 

126 

V.  Roberts 

632 

McHardy  v.  Hitchcock 

826,  827 

McMahon  v.  Harrison 

292 

McIUvaine  v.  Smith 

386  a,  555 

McMeekin  v.  Edmonds 

594 

Mcllvaine  v.  Getlier 

512 

McMuUen  v.  Beatty 

304 

Mclntire  v.  Agricultural  Bank        602  I 

V.  O'Reilly 

810 

V.  Hughes 

109,111 

V.  Scott 

918 

I'.  Janesville 

38 

McMurray  v.  Montgomery 

416,  418, 

V.  Knowlton 

678 

421 

V.  Lanesville 

724 

McMurry  v.  Mobley 

206 

V.  Skinner 

75 

McNair  v.  Pope 

171 

Mclntire   Poor    School   i\  Zanes- 

McNair's  Appeal 

225,  421 

ville  Canal  Co.  38,  43,  121 

240,  460, 

McNamara  v.  Garrity 

126 

6y8 

,  700,  742 

McNamara  v.  Jones 

910 

AIcKamey  r.  Thorp 

127,815c 

McNeil  V.  McDonald 

539 

McKay,  Li  re 

336 

McNeilage  v.  Holloway 

640 

IK  Carrington 

38,  231 

McNeille  v.  Acton        60, 

225, 

454,  800, 

McKee  v.  Judd 

69 

810 

McKee  i'.  Vail 

171 

McNeilledge  v.  Galbrath 

251,  255 

McKenna,  In  re 

122,  850 

McNish  V.  Guerard 

299 

305,  310 

McKennan  v.  Phillips        240 

,  668,  672 

McPherson  v.  Cox 

276 

McKenney  v.  Burns 

162 

V.  Rollins 

104 

McKeown  v.  McKeown 

137 

V.  Snowdon           357 

366 

371,  374 

McKerii  v.  Handy 

891,  894 

McQueen  v.  Farquhar      511  a 

,  769,  830 

McKey,  Ex  parte 

618 

McRaeny  v.  Johnson 

330 

McKiUip  V.  McKillip 

235 

McRarey  v.  Huff 

215 

McKim  V.  Aulbach 

426 

McRee  v.  Means 

112,  380 

V.  Blake 

845 

McRemmon  v.  Martin 

239 

V.  Doane 

277,  284 

Mc  Roberts  v.  Moudy 

733 

V.  Duncan 

918 

McTighe  v.  Dean 

827 

V.  Handy 

294 

McVey  v.  Boggs 

636 

V.  Hibbard 

468 

McWhorter  v.  Agnew 

498 

V.  Voorhies 

72 

V.  Benson 

919 

McKinley  v.  Irvine 

195,  881 

V.  Wright 

586 

McKinney  v.  Pinkard 

187 

Mc  Williams  v.  Nisby 

68 

V.  Rhoades 

5!)3 

Meacham  v.  Sternes 

596,  918 

McKissick  v.  Pickle 

227 

Meachey  v.  Young 

612 

McKniglit  V.  Brady 

2.32,  239 

Mead  v.  Langdon 

183 

V.  Taylor 

228,  869 

V.  Merritt 

72 

V.Walsh              468,471, 

472,  612, 

V.  Orrery              217, 225, 

809,  810, 

613,  614 

,  615,  918 

811,  815 

McKonkey's  Appeal 

113,  119 

V.  Phillips 

591 

McLain  v.  School  Directors 

732,  748 

Meakings  v.  Cromwell 

64, 

499,  501 

McLanahan  y.  McLanahan 

75 

Meason  v.  Kaine 

134 

V.  W3'ant 

570 

Mebane  v.  Mebane 

386  rt 

McLane  v.  Johnson 

166 

Mechanics'  Bank,  In  re 

411, 

413,  760 

I".  McDonald 

546 

V.  De  Bolt 

816 

McLaren  v.  Stainton               545,  556  a  \ 

t;.  Edwards 

847 

McLarren  v.  Brewer 

127,  128 

V.  Gorman 

592 

McLaughUn  v.  Detroit 

545 

V.  Seton 

242 

v.  Fulton 

133,  828 

Meconkey's  Appeal 

511c 

McLaurie  v.  Parthlow 

82,84 

Medbury  v.  Watson 

173 

McLaurin  v.  Fairly              75, 

8.32.  840 

Mcdecai  v.  Parker 

520 

McLean  v.  Wade 

715,  748 

Medley  v.  Davis 

232 

McLearn  v.  McLellan 

232 

V.  Horton 

347,  670 

McLemore  v.  Good 

541,  556 

Medlicott  v.  O'Donnell 

228,  861 

McLennan  v.  Sullivan 

126 

Med  worth  v.  Pope 

66 

McLeod  V.  Bullard 

171 

Mcecham  v.  Steetle 

805 

XCVlll 


INDEX   TO   CASES   CITED. 


Section 

Section 

Meek  v.  Kettlewell     98, 

100, 

101,  102, 

105,  111 

Meserole  v.  Meserole                 398 

Meeting  St.  Bapt.  Soc.  v 

Hail  312,  734, 

Mesgrett  v.  Mesgrett     •  511,  517,  518, 

748 

519 

Megargal  v.  Saul 

232 

Messena  v.  Carr                                 547 

Megargel  v.  Naglie 

310  a,  652 

Messenger  v.  Clark                            664 

Meggison  v.  Moore 

112 

114,  116 

V.  Gloucester                               694 

Meggott  V.  Meggott 

871 

Mestaer  v.  Gillespie                          181 

Megod's  Case 

17 

Metcalfi'.  Cook                          655,661 

Meiirtens  v.  Andrews 

467,  869 

Metford  School                                   156 

Meigs  V.  Dimock           ^ 

232 

Methan  v.  Devon                            86,  93 

V.  Meigs 

103 

Methodist  Church  v.  Jaques     655,  660, 

Meikel  v.  Greene 

39 

665 

Meinertzhagen  i'.  Davis 

55, 

286,  297 

V.  Remmington      46,  715,  724,  728, 

Melery  v.  Cooper 

238 

731,  748 

Melick  V.  Voorhees 

845 

V.  Stewart                                     413 

Meliick  V.  Asylum 

706 

V.  Warren                                      748 

Melling  v.  Leak 

866 

Methodist  Soc.  of  Georgetown  v. 

Mellingen  v.  Bausmann 

642 

Bennett                                             518 

Mellish  V.  Robertson 

184 

Methold  V.  Turner                             615 

Mellish's  Estate 

850. 

Meure  v.  Meure                  366,  371,  372 

Meloney,  In  re 

280 

Meux  V.  Bell                                       105 

Mence  v.  Mence 

157 

V.  Howell                                     590 

Mendenhall  v.  Mower 

276  a 

V.  Maltby                        71,  72,  885 

Mendes  v.  Guedella 

412 

418,  442 

Mews  V.  Mews                                    664 

Mendon  v.  Merrill 

98 

Meyer  v.  Simonson             547,  548,  551 

Mennard  v.  Welford 

275 

284,  292 

Meyer's  Appeal                                   918 

Mer.  Man.  Co.  v.  Smith 

586 

Michael  v.  Baker                                 32 

Mercein  v.  People 

672 

V.  Jones                                      437  a 

Mercer  v.  Hall 

517 

Michigan  State  Bank  «.  Gardner      243 

V.  Stock 

77,  140 

Michoud  V.  Girod       195,  197,  205,  207, 

Mercers'  Co.  v.  Att'y-Gen. 

725 

229,  230,  745,  855 

Merchant  Tailor's   Co.  i 

.  Att 

'y- 

Middlebrook  v.  Merchants'  Bank    331 

Gen. 

725 

Middleton  v.  Clitlirow                        701 

Merchants'  Bank,  In  re 

275,  280 

V.  Dodswell                 484,  818,  819 

Meredith  v.  Heneage 

112, 

113,  115, 

V.  Middleton                 169,  181,  183 

116,  153 

V.  Reay                                          293 

Merest  v.  James 

13,  347 

V.  Spicer         61,  327,  427,  437,  701 

Merket  v.  Smith 

127 

Midland  Counties   Railw.  Co.  v. 

Merlin  v.  Blagrave        385,  476  a,  922, 

Westcombe                                      494 

928 

Midland  Great  Western  Railw.  v. 

Merriam  v.  Harsen 

667 

Johnson                                          184 

r.  Hassam 

860,  864 

Midlcott  V.  O'Donel                           855 

Merrick's  Estate 

462, 

463,  468 

Midmer  v.  Midmer                               138 

Merrill  v.  Fowle 

602  s 

Miggett's  Appeal                       195 

V.  Moore 

918 

Mikel  V.  Mikel                                   914 

V.  Neill 

599 

Milbank  v.  Collier                             885 

V.  Peaslee 

95 

Mildmay  v.  Mildmay                         220 

V.  Smith 

127 

Miles  V.  Bacon                    596,  891,  910 

V.  Swift 

593 

V.  Durnford          225,  809,  810,  811 

Merriott  v.  Givens 

m2<jg 

V.  Ervin                                         202 

Merritt  v.  Farmer's  Ins. 

Co. 

336,  337 

V.  Fisher                                        320 

V.  Jenkins 

918  « 

V.  Knight                                      765 

V.  Lambert 

202 

V.  Leigh                                       569 

V.  Lyon 

664 

V.  Neave                                      270 

V.  Wells 

232,  239 

V.  Wheeler                          205,  865 

V.  Wilson 

599 

Miles's  Will,  In  re                               455 

Merriweather  v.  Booker 

633 

Mlhous  V.  Dunham           458, 814 

Merry?;.  Abney 

277 

Millar  v.  Craig                                    923 

V.  Ryves 

517,  519 

Millard  v.  Eyre           275,  282,  283,  293 

Mersey  Docks,  &c.  v.  Gibbs 

744,  914 

V.  Hathaway               126, 137,  863 

INDEX   TO    CASES   CITED. 


XClS 


Section 

Section 

Millard's  Case 

219, 

521,  828 

Mills  V.  Newbury 

732 

Milledge  v.  Lamar 

546 

Mills  u.  Osborne 

438,  453 

Miller  v.  Atkinson 

700 

720,  748 

V.  Post 

828 

V.  Antle 

215 

V.  Robarts 

616 

V.  Argyle 

602  ee 

V.  Swearingen 

828 

V.  Beverleys 

324, 

464, 

468, 910, 
912,  918 

V.  Taylor 
Millspaugh  v.  Putnam 

783 
98 

V.  Bingham 

646, 

652,  653 

Milner  v.  Colmer 

633 

V.  Blose 

133, 

141,  143 

V.  Freeman 

126,  147 

V.  Brown 

680 

V.  Hyland 

828 

V.  Chittenden 

384,  748 

V.  Turner 

35 

V.  Congdon 

263,  574 

Milnes  v.  Slater 

563 

V.  Conklin 

592 

Milroy  v.  Lord 

96, 

100,  102 

t;.  Cotton 

226 

Milsington  v.  Mulgrave 

508, 

532,  534 

V.  Davis 

165 

Miras  V.  Chandler 

133 

V.  Evans 

774,  779 

Minchin  v.  Nance 

122 

V.  Fenton 

879 

Mines  i\  Lockett 

232,  237 

V.  Franciscus 

230 

V.  Mason,  &c.  R.  R. 

232,  237 

V.  Gable 

733, 

734,  748 

Mineti^.  Hyde 

630 

V.  Harwell 

562,  573 

Minet  v.  Vulliamy 

741 

V.  Hine 

685 

Minor  v.  Wicksteed 

669 

V.  Hull 

602  <, 

602 

u,  602  aa 

Minot  V.  Amory 

551 

V.  Knight 

282 

t'.  Boston  Asylum 

730 

V.  Lerch 

42,45 

V.  Mitchell 

135, 

172,  215 

V.  Macomb 

380 

V.  Paine 

545 

V.  Mclntire 

228,  855 

V.  Prescott 

783,  785 

V.  Meetch 

248 

262, 

308,  499 

V.  Thompson 

547 

V.  Miller 

547,  672 

Minton  v.  Pickens 

828 

. V.  Morrison 

863 

Minturn  v.  Seymour 

9' 

r,  98,  367 

V.  Pearce 

181 

Minuse  v.  Cox     462,  568, 

780, 

782,  894 

V.  Porter 

697,715 

731,  748 

Mirehouse  v.  Scaife 

569, 

570,  573 

?j.  Priddon 

284, 

806,  808 

Missionary  Society 

730,  748 

V.  Proctor 

441, 

458,  927 

Mitchell  V.  Adams 

264 

V.  Race 

837 

V.  Beal 

590 

V.  Rowan 

705,712 

V.  Bower 

584 

V.  Rutland,  &c. 

Railway 

757 

V.  Bunch 

72 

V.  Scammon 

167 

y.  Colburn 

437  a,  539 

V.  Stanley 

538 

V.  Colglazier 

127 

V.  Stokely 

137 

V.  Corbett 

769 

V.  Stump 

324 

V.  Gates 

647 

V.  Thatcher 

75 

V.  Gazzam 

586 

V.  Welles 

178 

V.  Holmes 

918 

V.  Wetherby 

685 

V.  Kingman 

35 

V.  Whittier 

911 

V.  Mitchell 

578 

584,  684 

V.  Williams 

664 

V.  Nixon 

291 

V.  Williamson 

655, 

660,  810 

V.  O'Neil 

137 

V.  Wilson 

162 

V.  Otey 

677 

Miller's  Case 

17 

V.  Pitner 

282 

Estate 

606,  609, 

639,  918 

V.  Rice 

262 

Millet  V.  Rowse 

636 

I'.  Sevier 

628 

Milligan  v.  Mitchell 

734,  816 

V.  Stiles 

590 

Milliken  v.  Ham 

126 

V.  Winslow 

68 

Milling  V.  Leak 

860 

Mitchelson  v.  Piper 

474 

Millinger  v.  Bailsman 

676 

Mitchum  r.  Mitchum 

205 

Mills  V.  Argall 

599 

Mitford  V.  Mitford       239 

633, 

635,  641 

V.  Banks  578,  581,  597,  768 

V.  Dugmore  773 

V.  Farmer    156,  693,  705,  708,  714, 
719,  724,  725,  729,  739 
-V.  Hoffman  452 

V.  Mills         440,  451,  455,  467,  547 


V.  Reynolds       41,  47,  61,  697,  704, 
706,  712,  720,  741 
Mittenberger  v.  Schlegel  576 

Mix  V.  King  181 

Mobile,  &c.  Railway  v.  Tolman       754, 

757 


INDEX  TO    CASES   CITED. 


Section 

Section 

INIobile  Life  Ins.  Co 

.  V.  Rau- 

Montpelier  v.  E.  Montpelier             275 

dall 

828 

Moody  V.  Farr 

328 

Mocatta  v.  Murgatroyd 

347 

V.  Fulmer 

500,  518 

Moddewell  c.  Keever 

699 

V.  Gay 

72 

Modrell  v   Riddle 

137 

V.  Vandyke 

195,  205,  500 

Moffatt  V.  Bingham 

864 

Moons  V.  De  Bernales 

464,  847 

V.  McDonald 

127,  836 

Moor's  Appeal 

924 

r.  McDowall 

585 

Moorcroft  v.  DowdiL 

S 

82,  400 

V.  Tut  tie 

815  6 

Moore  v.  Black 

871 

Mogg  r.  Hodges 

57 

V.  Blake 

877 

V.  Mogg 

385,  390 

V.  Brackin 

203 

Moggeridge  ik  Grey 

275 

V.  Burnet 

17,  328,  520 

V.  Thackwell        156, 

690,  693,  705, 

V.  Burrows 

231 

714, 

719,  722,  724, 

V.  Clay 

219 

729,  739 

V.  Cleghorn 

357 

Mohn  V.  Mohn 

86 

V.  Crofton 

107,  108,  109 

Mohun  V.  Mohun 

747 

V.  Darton 

87 

Moir  V.  Brown 

273 

I'.  Dimond 

254,  511  b 

Moke  V.  Norrie 

59,  297 

V.  Ellis 

673 

Mole  V.  Mole 

616 

V.  Frowd 

432,  894,  895,  904 

V.  Smith 

347 

r.  Green 

135 

Mollan  V.  Griffith 

562,  573 

V.  Halcombe 

283,  239 

Molony,  /n  re 

901 

V.  Hamilton 

453 

V.  Kennedy 

626 

V.  Harris 

653 

V.  Kernan 

206,  219 

V.  Henderson 

880 

Molton  V.  Camroux 

189 

I'.  Hilton 

205 

V.  Morton 

684 

V.  Hussey 

48 

Molum  V.  Molum 

891,  894,  896 

V.  Jackson 

349 

Monahan  v.  Gibbons 

421 

V.  Jones 

619 

Monell  V.  Monell 

416,  419,  421 

V.  Lampkin 

815  6 

Money  v.  Herrick         75, 

132,  133,  137, 

I'.  Lockett 

766 

181 

V.  Moore       137, 

381, 

606,  627,  629. 

Moneypenny  v.  Bristow 

871 

632,  665, 

670, 

671,  721,  724, 

V.  Dering 

376,  385,  890 

728 

,  731,  748,  931 

Monk  V.  Mavvdesley 

511c 

V.  Morris 

647,  668 

Monks  V.  Monks 

903  a 

r.  Prance 

900 

Monro  v.  Allaire 

195,  199 

V.  Raymond 

238 

Monroe  v.  James 

262 

V.  Read 

191 

Montacute  v.  Maxwell 

226 

V.  Scarborough 

665 

Montague  v.  Dawes       199,  495,  602  w, 

V.  Sheppard 

863 

602  X,  602  qq 

V.  Shultz 

298,  310,  498 

V.  Garnett 

84'8 

V.  Smith 

929 

l^Iontague  v.  Hayes 

82 

V.  Stinson 

310 

Montefiore,  Ex  parte 

836 

V.  Tandy 

421 

V.  Behrens 

630 

V.  Thornton 

633 

V.  Browne 

784 

V.  Vinten 

878 

Montesquieu  v.  Sandys 

188,  202 

V.  Zabriskie 

918 

Montford  i'.  Cadogan 

260,  261,  467 

Moorhouse  v.  Calvin 

208 

532,  534,  847 

848,  849.  877 

Moors  V.  Wyman 

918  n 

Montgomery  v.  Agricultural  Bank  661 

Mora  V.  Manning 

849 

V.  Bath 

873,  882 

Moravian  Soc.  In  re 

284 

V.  Beavan 

920 

Mordecai  v.  Parker 

17,  328 

IK  Commercial  Bank 

588 

Morden  ;■.  Chase 

299 

V.  Dorion 

55 

More  V.  Freeman 

672 

V.  Eveleigh 

661 

V.  Mayhow 

219,  220,  221 

V.  Hobson 

230 

Morehead  v   Brown 

918 

V.  Johnson 

261 

Moreton  v.  Harrison 

232,  234,  238 

V.  McElroy 

569 

Morey  v.  Herrick 

133,  181,  215 

V.  McEwen 

602  9^7 

Morgan,  Ex  parte 

209, 

336,  337,  870 

!•.  Milliken 

500 

V.  Elam 

661 

Montgomery's  Appeal 

918  n 

V.  Halford 

227 

INDEX   TO    CASES    CITED. 


CI 


Section 

Morgan  v.  Hannas  918 

V.  Higgins  20 

V.  Homans  432 

V.  Mallsoa  96,  97,  101 

V.  Morgan            324,  397,  450,  451, 

547,  551,  584,  871 

V.  Otey  45tj 

V.  Stephens  907 

Monarty  v.  Martin  112,  254 

Morice  v.  Durham     116,  150,  157,  159, 

507,697,  703,  711,712 

Morison  v.  Morison  907,  910 

Morley  v.  Bird  130 

V.  Hawke  819 

V.  Morley  347,  441,  914 

V.  Rennoldson  515 

Morley's  Trusts  337 

Mornington  v.  Keane  122 

V.  Selby  183 

Morony  v.  Vincent  892 

Morrell  v.  Dickey  891 

Morret  v.  Paske  206,  430,  431 

Morrill  i-.  Lawson  878,  881 

Morriman's  Trusts  633 

Morris  v.  Burroughs  201 

V  Hanson  143 

V.  Joseph  206 

V.  Kent  272 

V.  TlcCulloch  214 
V.  Morris              162,  540,  610,  771 

V.  Mowatt  562 

V.  Nixon  206,  226 

V.  Preston  290 

V.  Remington  72 

V.  Thompson  748 

V.  Wallace  456,  459 

V.  Way  44,  602  i 

Morris's  Appeal  600 

Morris  Canal  v.  Emmet  174 

Morrison,  In  re  623 

V.  Bean  602  qg 

V.  Beirer  731,  748 

V.  Kelly  296 

V.  Kenstra  447,  463 

V.  McLeod  189,  191 

V.  Moat  67 

V.  Morrison  432 

Morrow  v.  Peyton  426 

Morse  v.  Crofoot  600 

V.  Hill  195,  229 

V.  Mason  680 

V.  Morse  82 

V.  Royal               195,  197,  209,  228, 

428,  861,  869 

Mortimer  v.  Ireland  294,  340,  494, 

495 

V.  Moffatt  541 

V.  Picton  455 

V  Sliortall  226 

V.  Watts  508,  532 

Mortimore  v.  Mortimore  460 


Section 

Mortlock  V.  BuUer      169,  176,  498,  507, 

539,  770,  775,  777, 

779,  781,  784,  787 

Morton  v.  Adams  458,  910 

V.  Barrett  305,  891,  894,  910 

V.  Naylor  68 

V.  Southgate  511 

V.  Tewart  82,  83 

Morviile  o.  Fowler  412,  701 

Mory  V.  Michael  32,  511  c 

Mosby  V.  Steele  37 

Moseley  v.  Eastern  R.  R.  Co.  556 

V.  Marshal  329,  539,  540,  547 

V.  Moseley  249,  257 

Mosely  r.  Garrett  232 

Mosely  &  Eley  v.  Norman      815  6 

Moser  v.  Lebenguth  184 

Moses  V.  Levi  419,  422,  423 

V.  Murgatroyd      98,  343,  414,  593, 

594,  602  Jf,  891 

Moshier  v.  Knox  College  246  a 

Mosley  v.  Ward  900 

Moss  V.  Bainbridge  202 

V.  McCall  647 

Moth  V.  Atwood  183,  187,  188 

Mott  V.  Buxton  305 

V.  Clark  218,  222 

V.  Harrington  202 

Moulton  V.  De  M'Carty  614 

V.  Haley  143,  676 

Mounce  v.  Byars  232,  239 

Mountford,  £r  yoarte  613,617 

V.  Scott  222 

Mousley  v.  Carr  468,  901 

Movan  v.  Hays  76,  79,  165,  226 

Mower  v.  Hanford  590 

Movie  V.  Moyle  259,  417,  443,  462,  563 

Moyse  v.  Gyles  136 

Mucholland  v.  Belfast  770 

Muckenfoss  v.  Heath  918 

Muckleston  v.  Brown       84,  90,  93,  151 

160,  165,  216 

V.  Tuller       262,  416,  419,  438,  440 

Mudge  V.  Brown  672 

Muggeridge's  Trusts  388,  555 

Muir  V.  Cross  232 

V.  Schenck  438 

V.  Trustees  182 

Mulcahy  v.  Kennedy  861 

Muldrow  V.  Fox  499 

Mulford  V.  Shurk  591 

V.  Winch  205 

Mulhallen  v.  Murura  200,  229,  230 

Mulholland  v.  York  171 

Mullen  V.  Bowman  152 

Mulligan  v.  Mitchell  745 

Mulvaney  v.  Dillon  196 

Mumford  v.  Murray  418,  410,  463,  468, 

594,  026,  632,  645 

Mumma  v.  Mum  ma  54,  143,  146 

V.  Potomac  Co.  242 


Cll 


INDEX  TO   CASES   CITED. 


Section 

Mumper's  Appeal  891 

Muuch  V.  Cockerell  404,  417,  454,  463, 

467,  847,  851,  875,  878,  881,  923 

Munden  v.  Bailey  815  a 

Mundine  v.  Pitts  218 

Mundyr.  Howe  612 

V.  Mundy  871 

r.  Vattier  598,602^ 

Munro  v.  Collins  128 

Munson  v.  S.  G.  &  C.  E.  R.  Co.  129 

Muntorff  v.  Muntorff  891 

Murdoch  v.  Finney  438 

V.  Hughes  863,  865 

Murdoch's  Case  199 

Murdock  v.  Johnson  783 

Murless  v.  Franklin  126,  143,  145, 

146,  147 


Murphy,  In  re 
c.  Abraham 

555 
555 

V.  Bell 

590 

i;.  Bright 

685 

V.  Dallam 

748 

V.  Grice 

626 

V.  Hubert 

75 

V.  Moore 

330 

V.  Nathans 

144 

V.  Peabody 

Murray  v.  Able 
V.  Addenbrook 

126,  139 

238 

880,  381 

.  Ballou 

217,  221 

V.  Barlee 
V.  Blatchford 

657 

,  658,  662,  663 
425 

n.  Coster 

228 

V.  Dehon 

503 

V.  DeRottenham 

915 

V.  Elibank 

626, 

627, 

630,  645 

V.  Feinour 

459, 

465 

466,  467 

V.  Glass           82, 

454, 

544, 

545,  551 

V.  Lylbum 

836,  842 

V.  ]\Iurphy 
V.  Palmer 

171, 

182 
187,  230 

V.  Pinkett 

835 

V.  Sell 

126 

V.  Vanderbilt 

199,  207 

^lurrell  r.  Cox 

416, 

421, 

423,  809 

Murthwaite  v.  Jenkenson  305,  308 

Muscogee  Lumber  Co.  v.  Hyer 

918  n 
Muse  V.  Sawyer  263 

Musham  v.  Musham  127 

Mu.skerry  v.  Chinnery  530 

Musselman  v.  Eshelman  205 

Mussey  v.  Mussey  863 

V.  Noyes  590 

;Musters  v.  Wright  626 

Myatt  V.  St.  Helen's,  &c.  Railw.      750 
^lyevcongh,  Ex  parte  617 

Myers  v.  McBride  511  c 

Myers  )-.  Myers  139,  471,  612,  627,  910 

V.  Perigal  86 
V.  Trustees  of  Schools               275 


Section 

Myers  v.  Wade 

618 

V.  Zetelle 

456 

Myers's  Appeal 

206,  918 

Myetsky  v.  Goery 

685 

Myler  v.  Fitzpatrick 

246,  907 

N. 


Nab  V.  Nab  82,  84,  85,  86,  90 

Nace  V.  Beyer  194 

Nagle  V.  Bayler  191 

Nagle's  Estate  297,  506,  769 

Naglee  r.  Ingersoll  665 

Nail  V.  Punter  467,  849 

Nairn  v.  Majoribariks        477,  552,  913 

V.  Prowse  236 

Naldred  v.  Gilham  103 

Nance  v.  Coxe  541 

V.  Nance  457,  460 

Nanney  v.  Martin  639 

V.  Williams  181, 182 

Nantes  v.  Corrock  189,  662,  663 

Nantz  V.  jMcPherson  219 

Napier  v.  Howard       627,  632,  636,  645 

V.  Napier  626,  632,  636 

Nash  V.  Allen  310 

V.  Coates  312 

V.  Morely  699,  711,  712 

V.  Nash  640 

V.  Preston  322 

V.  Spofford  246  a 

Nathans  v.  Morris  918 

National  Bank,  &c.  v.  Lake  Shore, 

&c.  R.  R.  Co.  242 

V.  Ellicott  122 

National  Exch.  Co.  v  Drew  172 

National  Webster  B'k  v.  Eldridge    284 

Naylor  v.  Arnitt  305,  307,  329,  484,  528 

V  Wynch  185,  199 

Nazareth,  &c.  v.  Lowe  239 

Neal  V.  Maxwell  932 

Neale,  In  re  613 

V.  Davies  433 

V.  Haythrop  126 

V.  Neale  185 

Neally  v.  Ambrose  590 

Nearpass  v.  Newman  104 

Nedby  v.  Nedby  667 

Need  ham,  In  re  259 

Needler's  Case  849 

Needles  v.  Martin  748 

V.  Needles  188,  639 

V.  Winchester  48 

Neel  V.  McElhenny  864 

Neele}'  v.  Anderson  206 

Neely  v.  Steele  783 

Neeson  v.  Clarkson  231 

Neeves  i\  Burrage  474 
Neff's  Appeal              438,  441,  914,  927 

Negroes  v.  Palmer  114 


INDEX   TO    CASES   CITED. 


cm 


Section 

Neil  V.  Kinney  232,  239 

Neill  V.  Keese  127,  138 

Neilson  v.  Blight  98,  593 

V.  Cook  914 

V.  Lagow  62,  64,  312,  320 

Neimawicz  v.  Gahn  554,  667 

Nelson  v.  Bridport  74 

V.  Callow  506 

V.  Cornwall  863 

V.  Davis  299,  805,  312,  357 

V.  Buncombe  915 

V.  Hagerstown  Bank  468,  869 

V.  Lee  610 

V.  Oldfield  182 

V.  Seaman  878 

V.  Stocker  930 

V.  Warrall  187 

Nesbitt  V.  Berridge  188 

V.  Tredennick  129,  196,  538 

Nestal  V.  Schmidt  135 

Nettle's  Charity,  In  re  735 

Nettleship  v.  Nettleship  665 

Nettleson  v.  Stephenson  395,  397 

Neustadt  v.  Joel  596 

Nevarre  »•.  Rutton  863 

Neves  v.  Scott  359,  361,  367,  370 

Nevil  V.  Saunders  305,  310 

Nevill  V.  Nevill  119 

Neville  v.  Fortescue  451,  466 

V.  Wilkinson  171 

Nevitt  V.  Gibson  171 

New  V.  Bonaker  47,  741 

V.  Jones  904 

V.  Nichol  526 

New  England  Tr.  Co.  v.  Eaton  547 

Newark  Meth.  Episc.  Ch.  v.  Clark  386, 

748 

Newberg,  &c.  Co.  v.  Miller  761 

Newburgh  v.  Bickerstaffe  871 

Newcastle  v.  Lincoln  364,  373 

Newcombe  v.  Keteltas  528 

V.  St.  Peter's  Church  748 

V.  Williams  263,  272,  426,  574 

Newcomen  v.  Hassard  658 

Newdigate  v.  Newdigate  540 

Newels  v.  Morgan  126,  149 

New  England  Bank  v.  Lewis    598,  594 

Newhall,  Ex  parte  37 

V.  Wheeler  299,  312,  843 

Newill  V.  Newill  380 

Newland  v.  Att'y-Gen.  704 

V.  Champion  225 

Newlands  v.  Paynter  647,  648,  653 

Newlin  v.  Freeman  655,  660 

Newman  t^.  Barton  244 

V.  Early  143,  229 

V.  Jackson     602  i,  602  q,  602  r, 

602  aa,  762,  782 

V.  James  648 

V.  Johnson  669 

V.  Jones  849 


Section 

Newman  v.  Meek 

188 

V.  Montgomery 

330 

V.  Payne 

202,  203 

V.  Warner 

273,  503 

V.  Williams 

574 

New  Market  v.  Smart 

748 

Newmeyer's  Appeal 

733 

New  Orleans  v.  McDonogh 

748 

Newport  v.  Bryan 

260 

V.  Cook 

615,  616 

Newsome  v.  Flowers 

433,  863 

Newson  v.  BufEalow 

226 

V.  Thornton 

243 

Newstead  v.  Searles 

222 

Newton  v.  Askew                104 

111,  821 

V.  Bennett      464,  468,  501 

,901,902 

V.  Bronson             71,  402, 

409,  779 

V.  Egmont 

885 

V.  Hunt 

188 

V.  Marsden 

514 

V.  Metropolitan  R.  Co. 

812 

V.  Pelham 

84 

V.  Porter                        128 

135,  211 

t".  Preston 

137 

V.  Reid 

652 

V.  Swazey 

84,  231 

New  York,  &c.  v.  Stillman 

334 

New  York  Ins.  Co.  v.  Ely 

44 

V.  Roulet 

843 

Neyland  v.  Bendy            137,  816  a 

Nice's  Appeal 

652 

NichoU's,  in  the  Goods  of 

929 

Nicholls  V.  NichoUs 

192 

V.  Peak 

598,  794 

Nichols  V.  Allen 

711 

V.  Baxter 

602  y 

V.  Campbell 

264,  343 

V.  Eaton                            386  a,  388 

V.  Hodges 

918 

V.  Levy 

386  a 

V.  McEwen 

590,  918 

V.  Palmer 

672 

V.  Postlethwaite 

570 

V.  Rogers 

276 

Nicholson  v.  Faulkiner 

888 

V.  Halsey 

347 

V.  Leavitt                     586, 

590,  591 

V.  Tutin 

593 

Nickell  V.  Handley          305,  386  a,  652 

Nickels  v.  Philips 

276 

Nickerson  i'.  Buck 

891 

NickoUs  V.  Gould 

188 

Nickols  ?'.  Thornton 

126 

Nickolson  v.  Knowles 

246 

NicoU  V.  Miller 

259 

V.  Mumford 

593,  594 

V.  Ogden 

259 

V.  Walworth           17,  312 

318,  828 

Nicolson  V.  Wordsworth 

270,  271 

273,  503 

Niell  V.  Morley 

35 

CIV 


INDEX   TO    CASES   CITED. 


Section 
Nightingale  v.  Burrell  380 

1-.  Goulbourn       41,  47,  61,  704,  720 
r.  Harris  592 

V.  Hidden  299,  324,  647 

r.  Lawson  533 

V.  Lockman  639 

V.  Nightingale  104 

Niles  V.  Stevens  402,  499 

Nimmo  v.  Davis  188 

Niiiis  V.  Bigelow  684 

Nisbett  v.  Murray  903  a 

Niver  v.  Crane  126,  133k 

Nivlon  V.  Douglass  585,  592 

Nix  V.  Bradley  646,  650,  655 

Nixon  V.  Rose  647,  660 

Nixon's  Appeal  126,  133,  137 

Noad  V.  Backhouse  818 

Noble  V.  Andrews       317,  357,  358,  841 

V.  Brett  932 

V.  Edwards  780 

r.  McFarland  676 

V.  Meymott  267,  291,  884 

V.  Morris  82 

Noel  V.  Bewley  349,  351,  355 

V.  Henley  550,  571 

V.  Jevon  322 

V.  Jones  119 

V.  Robinson  244 

Noke  V.  Seppings  826,  827 

Nolen's  Appeal  639,  642 

Norbury  v.  Calbeck  900 

V.  Norbury  457,  604 

Norcum  v.  D'Oench  511,  784 

Norfolk's  Case  737 

Norman  v.  Cunningham     843,  844,  847 

.    V.  Hill  602  p,  602  aa 

Norris  ?•.  Chambers  '        71 

V.  Clymer  610 

V.  Frazer  181 

V.  Harrison  544,  545 

V.  Johnston  555 

V.  Le  Neve  206,  228,  869 

V.  Norris  894,  897 

V.  Thompson  694,  711,  720, 

765,  920 

V.  Wright  457,  460,  889 

Norris's  Appeal         229,  464,  470,  471, 

901,  918 

North  V.  Barnum  863 

V.  Cronipton  150,  151 

V.  Curtis  609 

V.  Pardon  154 

V.  Philbrook  320 

V.  Turner  593 

North  Adams  Univ.  Soc.  v.  Fitch    705, 

748 
North  Amer.  Coal  Co.  v.  Dyett  554 
North  Baltimore,  &c.  Ass.  v.  Cald- 
well 195 
North  British  Ins.  Co.  r.  Lloyd  179 
North  Carolina  R.  R.  Co.  u.  Wilson  853 


North  Hampton  Bank  v.  Ballitt 

I'.  Whiting 
North  Hempstead  v.  Hempstead 
Northcroft  v.  Martin 
Northeii  v.  Carnegie 
Northern    Central    R. 
Keighton 

Northrop  v.  Hale 

North  Shore  Ferry  Co. 
Norton  i-.  Frecker 

V.  Gillison 


Section 
4.38 
299 
43 
172 
152 


V.  Ladd 
\       v.  Leonard 

V.  Norton 
(•.  Ray 

V.  Turvill 
Norton's  Estate 
Norvell  v.  Johnson 
Norway  v  Norway 
Norwich  Yarn  Co. 
Nostrand  v.  Atwood 
Nottige  V.  Prince 
Nottingham  v.  Jennings 
Nourse  v.  Finch 

V.  Merriam 
Nowland  v.  Nelligan 
Noyes  v.  Blakeman 
Nugent  V.  Gifford 

V.  Vetzera 
Nunn  V.  Graham 

V.  Harvey 

V.  Wilsmore 
Nurse  v.  Yerwarth 
Nurton  v.  Nurton 

Nutt  c.  Morse 

Nyce's  Appeal 

Estate 
Nyssen  v.  Gretton 


o. 


R.    Co.   V. 

918 
82 
331 
871 
918 
863 

299,  302,  305 
312 
843 
657,  663,  668,  863 
471 
232 

270,  271,  898 
907 


592 

189,  192 
380 
1.50 

738,  748 
112 

660,  680 

809,  810,  811,  815 

603 

680 

618 

600 

347 

809 

82 

418,  453,  456,  467 

459,  914 
570 


Oakes  v.  Strachay  117,  449 

Oakland  Bank  of  Savings  v. 

Wilcox  209 

Oakley,  In  re  428 

Gates  V.  Cooke  312,  313,  314 

Oatman  v.  Barney  346 

O'Bannon  i'.  Musselman  511 

Obee  V.  Bishop  850 

Obert  V.  Bordine  17,  328 

Oberthier  v.  Strand  126 

O'Brien  v.  Grierson  928 

V.  Lewis  202 

?•.  Petitioner  99 

O'Callaghan  v.  Cooper       517,  518,  901 
Ocean  Nat.  Bank  v.  Alcott  142 

Ochiltree  v.  Wright  415,  417,  421 

Ockeston  v.  Heap  340,  494,  495 

O'Connell  v.  O'Callaghan  890 

O'Connor  v.  Haslam  601 


INDEX   TO    CASES    CITED. 


cv 


Section 

O'Connor  v.  Spaight  H71 

Oddie  V.  Brown  396,  397 

Odell  V.  Odell  384,  399,  687,  724, 

7o7,  738,  748 

Oden  V.  Windley  918 

Oeslager  v.  Fischer  458 

O'Farrall,  Ex  parte  632 

O'Ferrall  v.  O'Ferrall  533 

Offley  V.  Offley  581 

Ugden  V.  Astor  178 

V.  Kip  819 

V.  Larabee  82 

V.  Murray  207,  918 

Ogden's  Appeal  305,  310  a,  652 

Oglander  v.  Oglander  277,  287 

O'Hara  v.  O'Neill  82,  135,  137 

O'Herlihy  v.  Hedges  427 

Oiie  V.  Heath  160 

Okeden  v.  Okeden  581 

O'Keeffe  v.  Calthorpe         277,  283,  284 

O'Kelly  V.  Glenny  862 

O'Kinson  v.  Patterson-     •  299 

Olcott  V.  Tioga  R.  R.  Co.  199 

V.  Bynum  132 

Oldham  v.  Hand  202 

V.  Jones  206 

V.  Litchfield  181,  226 

OHphant  v.  Hendrie  741 

Olive  V.  Dougherty  137 

Olive  V.  Westernian  458 

Oliver  lu  Court"!  210,  419,  770 

V.  Ins.  Co.  186 

V.  Oliver  226 

V.  Piatt  127,  217,  836,  842, 

843,  844,  863 

OUiffe  V.  Wells  687 

Olmstead  v.  Herrick  590 

Ommanny  v.  Butcher         253,  712,  748 

Oneal  v.  Mead  564 

O'Neall  0.  Herbert  425 

O'Neil  V.  Hamilton  215 

V.  Vanderburg  .      782 

O'Neill  V.  Donnell  918 

V.  Henderson  216 

V.  Lucas  381,  397 

Onslow  V.  Corrie  536 

V.  Londesborough  786 

V.  Wallis  157,  327,  434 

Ontario  Bank  v.  Mumford  58 

Opinion  of  Justices  757 

Orange  v.  Pickford  511  c 

Orbey  v.  Mohun  530 

Ordy.  Noel     409,  602  ee,  770,  774,  779, 

781,  787 

V.  White  831 

O'Reilly  v.  Alderson  275,  284,  292,  297 

Orford  f.  Churchill  903  r/ 

Orleans  v.  Chatham  82 

Orlebar  v.  Fletcher  231 

Ormiston  t'.  Olcott  4.52 

Orniond  v.  Hutchinson        178,  185,  863 


Ormsby,  /n  re 
V.  Tarascon 


Section 

904,  910 

602  g,  602  p,  602  q, 

783 


Orr  V.  Hodgson 

55 

V.  Newton 

231,  440 

Orrett  v.  Corser 

44Q 

Orrock  v.  Binney 

812 

Osborn  v.  Brown 

513 

V.  Morgan 

627,  633 

Osborne  v.  Fuller 

591 

Osborne, v. 

280,  282 

Osburn  v.  Tallows 

873 

Osgood  V.  Franklin 

187, 

308,  770 

V.  Strode 

367 

Osmond  v.  Fitzroy 

189,  851 

Osterman  v.  Baldwin 

65,  75,  131 

Oswald's  Appeal 

468 

Osvvell  V.  Probert 

626, 

632,  633 

Otis  I'.  Beckwith 

105 

V.  McLellan 

381 

V.  Sill 

86 

Ottley  V.  Gibbs 

821 

V.  Gray 

792 

Otto  V.  Schlapkahl 

863 

Ottway  V.  Wing 

654 

Ould  v.  Washington  Hospital 

694 

Ouseley  v.  Anstruther 

458,  469 

Outcalt  V.  Van  Winkle 

641 

Outwater  v.  Berry 

602  y 

Overbagh  v.  Petrie 

537 

Overseers  v.  Tayloe 

699 

Overseers    of    Ecclesalt 

Bierlow, 

Ex  parte 

737 

Overseers  of  Poor  v.  Bank  of  Vir- 

ginia 

128 

Overstreet  v.  Bates 

863 

Overton  v.  Bannister    53 

624, 

923,  930 

Owen  V.  Aprice 

871 

V.  Arvis 

592 

V.  Bryant 

66 

V.  Delamere 

454 

V.  Dickenson 

658 

V.  Homan 

178, 

179,  657 

V.  Owen 

284 

V.  Peebles 

462,  468 

V.  Reed 

831 

V.  Switzer 

511c 

V.  Williams 

196 

Owens  V.  Cowan's  heirs 

500 

V.  Crow 

520 

V.  Mission  Society 

748 

V.  Walker 

614 

Owing  V.  Mason 

218 

0 wing's  Case 

35 

570,  576 

Ownes  V.  Ownes    33,  66, 

82,  95,  96,  98, 

162 

165,  214 

Owson  V.  Cown 

172 

Oxenden  v.  Compton 

605,  611 

V.  Oxenden 

634,  6.37 

Oxford  ?'.  Richardson 

871 

Oxley,  Ex  parte 

388,  555 

CVl 


INDEX   TO    CASES   CITED. 


P. 

Section 
Pace  V.  Pace  386  a 

V.  Payne  863 

V.  Pierce  330 
Pacific   Nat'I   B'k.    v    Wind- 
ram                              585,  815  a,  827  a 
Packard  v.  Marshall          315,  160 


Packard  i'.  Putnam 

V.  Roberts 
Packer  v.  Packer 

V.  Wyndham 
Packwood  v.  Maddison 
Paddock  v.  Strobridge 
Paddon  v.  Richardson 


82 
633 
630 
633 
899 
179 
267,  417,  440, 
454 


Section 

Palmer  v.  Young  196,  538 

Pahnes  v.  Danby  611 

Palmetto  Co.  w.  Risley  127 

Pannell  v.  Hurley  246,  813,  907 

Pannill  v.  Coles  321 

Papillon  V.  Voice  359,  369 
Paramore  v.  Greenslade  122 
Parcher  y.  Daniel  511 « 
Pardoe  ?;.  Price  751 
Parfitt  V.  Hember  376,  383,  390 
Paris  V.  Paris  543,  545 
Parish  of  St.  Dunstan  v.  Beau- 
champ  695 
Parkam  v.  McCrary  230 
Parke  v.  Kleeber  680 
Parke's  Charity,  In  re  737 


Padfield  v.  Padfield 

98 

Parker,  Ex  parte 

236 

PafE  V.  Kinney 

855,  863 

V.  Bloxam 

429 

Page  V.  Adam             597, 

795, 

801,  802 

i\  Bodley 

75 

V.  Bennett 

455 

V.  Bolton 

112 

V.  Booth 

229,  230 

V.  Brooke            538, 

647, 

648,  665, 

•> V.  Boynton 

915 

833,  834 

V.  Broom 

585 

593,  786 

V.  Brown 

724 

V.  Cooper 

768 

V.  Calcroft 

242 

V.  Estes 

627,  632 

V.  Carter 

324 

V.  Leapingwell 

160,  574 

V.  Converse         284, 

320, 

653,  671, 

V.  Lever 

219 

921 

V.  Olcott 

590 

V.  Coop 

127,  133 

V.  Page          126, 133, 

137 

139,  143 

V.  Crittenden 

219 

221,  222 

V.  Stevens 

830 

V.  Fearnley 

570,  571 

V.  Trufant 

672 

V.  Gillian 

225 

V.  Way 

386  b,  555 

V.  Hall 

858 

Page's  Ex'r  v.  Holeman 

471 

V.  Johnson 

547,  912 

Pahlman  v.  Shumway 

002 

bb,  602  ff- 

V.  Jones  Adm'r 

828 

Paice  V.  Canterbury    150 

699 

719,  722 

V.  Kane 

680 

Paige  V.  Paige 

127 

V.  Kelly 

330 

V.  Smith 

762 

V.  May 

723,  748 

Paillon  V.  Martin 

195 

V.  Nichols 

299 

Paine  v.  Barnes 

768 

V.  Sears 

499 

V.  Hall 

216 

V.  Sewell 

237 

V.  Irwin 

199 

V.  Snyder 

137 

V.  Miller 

122 

V.  White 

199,  521 

V.  Wicox 

137 

Parkes  v.  White        646 

665, 

667,  669, 

Painter,  Ex  parte 

58 

670 

849,  869 

V.  Henderson 

195 

Parkhurst  v.  Van  Cortlandt 

226 

Pairo  V.  Vickery 

195 

Parkinson  v.  Hanbury 

199 

Paisley's  Appeal 

117,  119 

Parkinson's  Trust 

113 

Paker  v.  Simonds 

680 

Parkist  v.  Alexander 

206 

Palairet  v.  Carew 

770 

Parks  V.  Hall 

226 

Palmer  v.  Bate 

69 

V.  Parks 

298,  306 

V.  Carlisle 

873 

Parmenter  v.  Walker 

602  r,  602  to 

V.  Davis 

683 

Parmlee  v.  Sloan 

1.S7 

V.  Forbes 

759 

Parnell  v.  Kingston 

100 

,  101,  162 

V.  Holford 

380,  395 

V.  Lyon 

513,  517 

V.  Jones 

847 

Parnham  r.  Hurst 

345 

V.  Mitchell 

464 

Parris  v.  Cobb 

863 

V.  Simmons 

112,  113 

Parrish  v.  Rhodes 

149 

V.  Wakeford 

880 

Parrott  v.  Palmer 

871 

V.  Wilkins 

334 

V.  Pawlett 

694,  724 

V.  Williams 

221.788 

V.  Sweetland 

235,  236 

V.  Yarborough 

602  jf 

V.  Treby 

900 

INDEX   TO    CASES    CITED. 


CVU 


Parry  v.  Warrington 

V.  Wright 
Parshall's  Appeal 
Parson  v.  Snook 
Parsons  v.  Baker 

V.  Boyd 
u.  Clark 

V.  Dunne 

V.  Hayward 

V.  Jones 

t'.  Jury 

V.  Lyman 

V.  Parsons 

V.  Winslow 
Partington  v.  Reynolds 
Partridge  v.  Havens 

V.  Messer 

V.  Pawlett 

V.  Stocker 

V.  Walker 
Paschall  v.  Acklin 

7j.  Hinderer 
Pascoag  Bank  v.  Hunt 
Pascoe  V.  Swan 
Passingham  v.  Sherborne 


Section 

462,  508,  550 

347 

209,  427 

385 

112 

330,  414,  602  m 

596 

630 

430 

275 

218 

262,  281 

629,  639,  641 

458,  516,  552,  817 

890 

126,  143 

212,  591 

136 

660 

693 

694,  737,  748 

146,  229 

128,  135 

871,  872 

277,  297 


Pattenden  v.  Hobson  771,  890 

Patterson  v.  Devlin  541,  546,  547 

V.  Flanagan  681 

V.  High  546 

V.  Johnson  260 

V.  Linder  232 

V.  Mills  86 

V.  Murphy  82,  86,  96,  104 

V.  Scott  569,  573 

Patterson's  Appeal  195 

Pattison  v.  Hawksworth  866 

Patton  V.  Moore  220,  221 

V.  Randall  501 

V.  Thompson  428 

Paul  V.  Chouteau  126 

V.  Compton  112,  116 

V.  Fulton  82,  221 

V.  Heweston  511  6 

V.  Squibb  205 

V.  Wilkins  231 

Paules  V.  Dilley  275 

Paulet  V.  Delavel  679 

Paulus  V.  Latta  828 

Paup  V.  Mingo  94 

Pavey  v.  American  Ins.  Co.       76 

Pawcey  v.  Bowen  529 

Pawlett  V.  Att'y-Gen.  40,  217,  325 

V.  Clark  743 

Paxson  V.  Potts  569,  570 

Fa-yne,  Ex  parte  112,116 

V.  Atterbury  231 

V.  Ballard  863 

V.  Collier  460,  884 

V.  Compton  828 

V  Little  665,894 

i;.  Low  ,       613 


Section 

Payne  v.  Parker  876 

V.  Rogers  o30 

V.  Sale  312,  317 

Payne's  Case  694 

Peabody  v.  Eastern  Meth.  Soc.        730 

V.  Tarbell  126,  137 

Peachman  v.  Daw  827 

Peacock  v.  Black  228 

V.  Evans  187,  188 

V.  Monk        654,  655,  656,  657,  665 

V.  Pembroke  640,  642 

V.  Tompkins  591 

Peak  V.  EUicott  122 

Peake,  Ex  parte  ^  236,  239 

V.  Ledger     '  884 

V.  Penlington  375,  767 

Pearce  v.  Crutchfield  636 

V.  Gamble  197 

V.  Gardner  499,  771,  78.3 

V.  Loman  515 

V.  McClenaghan  312 

V.  Newlyn  280,  828 

V.  Olney  72 

V.  Pearce  265,  274,  288,  846 

V.  Slocombe  597,  599,  600 

Peard  v.  Kekewich  376 

Pearle  v.  McDowell  35 

Pearly  v.  Smith  556 

Pearse  v.  Baron  528 

;;.  Green  821 

V.  Hewitt  877 

Pearson  v.  Amicable  Office  101 

V.  Bank  of  England  242 

V.  Belchier  869 

V.  Benson  202 

V.  Crosby  592 

V.  East  135,  172 


V.  Jamison 

V.  Morgan 

V,  Pearson 

V.  Pulley 

V.  Rockhill 
Pease  v.  Pilot  Knob  Co. 
Peat  V.  Crane 
Peatfield  v.  Benn 
Peay  v.  Peay 
Pechel  V.  Fowler 
Peck  V.  Brown 

V.  Hendershott 

V.  Peck 

V.  Walton 

V.  Whiting 

Peckham  v.  Newton 

Peckham  v.  Taylor 
Peebles  v.  Reading 


402,  408,  779 

171 

903  a 

855,  862 

585,  591,  594 

511c 

455 

293,  297 

324 

589,  770,  782,  816 

521 


Peeples's  Appeal 
Peek  V.  Henderson 
Peer  v.  Peer 
Peercy  v.  Roberts 
Peers  v.  Ceeley 


678 

602  ee 

676 

591 

452 

86,  100 

134,  135,  137,  141, 

172,  217,  228 

262 

765 

147,  148 

386,  555 

910,  927 


cvm 


INDEX   TO    CASES   CITED. 


Peiffer  v.  Lytle 
Peillow  V.  Brooking 
Peirce  v.  McKeelian 
Pelham  v.  Anderson 
Pell  V.  Ball 

V.  Cole 

V.  De  \Yinton 

1;.  Mercer 

Pelley  v.  Bascombe 
Pells  V.  Brown 
Pelly  V.  Maddin 
Peniber  v.  Knighton 

V.  Mathers 
Pemberton  v.  McGill 

V.  Johnson 


Section 
137 
671 
137 
699 
900 
681 
476,  792,  806 
723 
863 
379 
126 
701 
226 
669 
686 


Pembroke  v.  Allenstown  126 

Pendleton  v.  Fay  225,  810,  811 

Penfield  v.  Public  Adm'r  98 

V.  Skinner  748 

i".  Sumner  710 

Penfold  V.  Bouch  157,  520,  900 

1-.  Mould  97 

Penn  v.  Lord  Baltimore  40,  71,  172, 

325 

Penne  v.  Peacock  489 

Pennell  v.  Deffell  443,  463,  837 

V.  Home  869 

Pennell's  Appeal  910,  918 

Penney  v.  Avison  471 

Penniman  v.  Sanderson  785 

Pennington  v.  Beechey  219 

V.  Buckley  701,  903  a 

V.  Giddington  109 

Pennock  v.  Coe  68,  759 

Pennock's  Appeal  195,  205,  428 

Estate  113,  119 

Pennoyer  v.  Shelden  765 

Penn  Ins.  Co.  v.  Austin  768,  809 

Penny  v.  Allen  8,  869,  871 

V.  Cook  781,  785 

V.  Davis  259,  261 

V.  Penny  877 

V.  Turner      248,  251,  255,  258,  714 

Pennypacker's  Appeal  471 

Penobscot  R.  R.  Co.  v.  Mayo    843,  923 

Penrhyn  v.  Hughes  554 

Pensonneau  v.  Bleakley  218 

Penstred  v.  Payer  701 

Pentland  v.  Stokes  621,  858 

Pentz  V.  Simonson  685 

People  V.  Abbott  437  a 

People  V.  Everest  855 

t'.  Houghtaling  245 

V.  Jansen  210 

V.  Kendall  170 

V.  Merchants'  Bank  195 

V.  Morton  341 

V.  Moores  3.3 

V.  Norton  275 

V.  0.  B.  of  S.  B.  B.  Co.  195 

V.  Steele  734,  748 


Section 
People  V.  Tebbets  331 

V.  Utica  Ins.  Co.  44 

V.  Webster  49 

Pepper  v.  Tuckey  277 

Peppercorn  v.  Wayman  270,  273 

Peralta  v.  Castro  84 

Percy  v.  Milladon  207 

Perfect  v.  Lane  188 

Perham  v.  Randolph  172 

Perin  v.  Cary        45,  697,  724,  737,  748 


Perine  v.  Swaine 
Perkins  v.  Boynton 

V.  Cartwell 

V.  Cottrell 

V.  Elliott 

V.  Kershaw 

V.  Lewis 

V.  McGavock 

V.  Moore 

V.  Nichols 
V.  Perkins 

V.  Pritchard 

Perkins's  Appeal 

Perkinson  v.  Hanna 
Perrin  v.  Applegate 

V.  Lyon 

V.  McMicken 
Perry,  Goods  of 

V.  Boileau 

V.  Craig 

I'.  Head 

V.  Knott 

V.  McEwen 

r.  McHenry 

V.  Pearson 

V.  Phelips 

V.  Roberts 

I'.  Shipway 
Perry  Herrick  i'.  Attwood 
Perryclear  v.  Jacobs 
Persch  v.  Quiggle 
Person  v.  Warren 
Personeau  r.  Personeau 
Persons  r.  Persons 
Persso  V.  Persse 
Petch  V.  Tutin 
Peter  v.  Kendall 
Peters  v.  Beverly 


6.54 

468 

855,  863 

676 

660 

910 

262,  281 

268,  274 

262,  263 

146,  148 

836 

752 

918 

221 

892 

515 

43 

264 

647 

229,  230 

126 

848,  874,  877,  882 

733 


V.  Goodrich 

V.  Grote 
Petersham  v.  Tash 
Peterson  t'.  Grover 
Peterson's  Appeal 
Peti.  of  Baptist  Church 
Petit  V.  Smith 
Petit's  Appeal 
Peto  V.  Gardner 
Petre,  Ex  parte 

V.  Espinasse 

V.  Petre 


132 

226 

841 

286  6 

413 

108 

628,  632 

128,  206,  851 

56 

466 

147 

185 

67 

756 

415,  421,  499,  501, 

602  m,  765 

186 

637 

243 

226 

499 

476  a,  928 

17,  150 


6Vc 


618 
605 
614 
104 
614 


INDEX   TO   CASES   CITED. 


CIX 


Section 

Petrie  v.  Clark  225,  809,  812,  814 

Petriken  i\  Davis  593 

Pettee  v.  Peppard  440 

Pettibone  v.  I'erkiiis  602  o 

Pettingill  v.  Pettingill  262,  559 

Pettiward  v.  Prescolt  872 

Pettus  V.  ClavvsOn  468 

Petty  V.  Booth  648 

V.  Petty  213 

V.  Styward  136 

Peyton  v.  Alcorn  610 

V.  Bury        344,  414,  505,  511,  518, 

519 

V.  Enos  205 

V.  McDowell  891 

V.  Rawlins  191 

V.  Smith  463,  468,  918 

Phalen  v.  Clarke  230 

Pharis  v.  Leachman  841,  877 

Phayre  v.  Perce  217,  828 

Phelps,  Ex  parte  275 

V.  Conover  237 

V.  Harris  769 

V.  Phelps  748,  890 

V.  Pond  396 

V.  Seeley  82,  137 

Phene',  Re  929 

V.  Gillon  245,  909 

Philadelphia,  Matter  of  529 

V.  Fox  710,  743,  748 

V.  Girard       45,  384,  396,  399,  724, 

728,  738,  748 

V.  "Wills  748 

Philanthropic  Society  v.  Kemp         573 

Philbrooke  v.  Delano  162,  232,  233 

Philippo  V.  Mannings         263,  574,  827, 

863 
Pliilips  V.  Brydges  8,  13,  347 
V.  Crammond  64,  126,  127,  131, 
139 
Phillips,  Ex  parte  412,  605,  611 
V.  Bank  of  Lewiston  438 
V.  Belden  229,  230 
V.  Buckingham  883 
V.  Bucks  172,  174 
V.  Bury  742,  743 
V.  Bustard  918 
V.  Eastwood  487 
V.  Edwards  778 
V.  Everard  786 
V.  Garth  250,  257 
V.  Gutteridge  576 
V.  Hessell  630,  632 
V.  James  361 
V.  Med  bury  514 
i;.  Moore  191 
V.  MuUings  104 
V.  Paget  624 
V.  Phillips  151,  226,  244,  444,  930 
V.  Rogers  855 
V.  Ross                                         284 


Phillips  V.  Sargent 
V.  Saunderson 
i\  South  Park  Commissioners 


Section 

547 

237 

76, 

82 

V.  Thompson  918 

V.  Ward  328 

V.  Winslow  759 

PhiUips  Academy  v.  King  42,  44 

Philhpson  v.  Gatty    457,  462,  467,  469, 

870,  881 

V.  Kerry 

Phillpots  V.  Phillpots 

Philpot  V.  Penn 

V.  St.  George  Hospital 
Phipps  V.  Annesley 

V.  Kelynge  381, 

Phoenix  v.  Livingston 

Phoenix  Bank  v.  Sullivan 
Phoenix  Life  Assurance  Co.,  In  re    331 
Phyfe  V.  Wardwell  638 

Piatt  V.  Oliver  127,  206,  881,  882 

V.  Vattier        38,  228,  230,  855,  869 
Pickard  v.  Anderson  433 

Pickering  v.  Coates  387,  652,  670 

V.  De  Rochemont  468 

V.  Pickering        185,  450,  451,  467, 
547 
46,  700,  701,  730,  748 
861,  867,  869 


104 
131 

137,  139 
709 
571 

390,  396 
918 
593 


V.  Shotwell 

V.  Staniford 

V.  Vowles 
Pickett  V.  Everett 

V.  Jones 

V.  Loggan 
Pickslock  V.  Lyster 
Pickup  u.  Atkinson 
Picquet  v.  Swan 
Pidcock  V.  Bishop 
Pidgeley  v.  Pidgeley 
Pierce  v.  Bowker 

V.  Brady 

V.  Brewster 
V.  Burroughs 

V.  Emery 
V.  Fort 

V.  Gates 

V.  McKeehan 

V.  Pierce 

V.  Robinson 

I'.  Scott 

V.  Thompson 

V.  Thornley 

V.  Waring 

V.  Weaver 

Pierpont  v.  Cheney 

V.  Graham 
Pierson  v.  Armstrong 

V.  David 

V.  Garnet 

V.  Shore 

V.  Thompson 
Pieschel  v.  Paris 


196,  336,  532,  538 

689 

672,  673 

187,  192,  230,  872 

590 

451,  547 

32,  51,  277 

171,  178,  179 

511c 

465,  918 

438 

590 

541,  554 

757,  758,  759 

75 

239 

836 

132 

602  yf 

789,  812 

639 

639 

200 

294 

614 

592,  593 

299 

232,  238,  239 

112,  116,  249 

196,  605,611 

744 

714,  729 


ex 


INDEX  TO   CASES   CITED. 


Piety  V.  Stace 
Pigott  y.  Penrice 
Piggott  V.  Green 
Pike  V.  Bacon 
V.  Baldwin 

v.  Collins 
Pilcher  r.  Plinn 

V.  Kandall 

V.  Kawliiis 
Pilkington  i'.  Bailey 

I'.  Bougliey 
Pillow  V.  Brown 

i;.  Shannon 
Pilmore  v.  Hood 
Pinchain  v.  Collard 
Pine  St.  Soc.  v.  Weld 
Pingree  i'.  Coffin 

V.  Comstock 

Pingrey  v.  Nat.  Ins.  Co. 

Pingry  v.  Washburn 
Pink  V.  De  Thuisey 
Pinkard  v.  Pinkard 
Pinkston  v.  Brewster 
Pinn  V.  Downing 
Pinnell  v.  Hallett 
Pinuey  v.  Fellows 


Section 

464,  468,  900 

248 

212 

591 

795 

639,  644 

230,  861,  867 

117 

223 

76 

112,  160 

166 

219 

173 

232,  237 

737 

80,  122 

594 

104 

214 

507,  508,  511 

97 

863,  867 

418,  419 

475 

79,82,126,  127, 

132,  139,  161,  647 

81,  133,  135 

82 


Pinnock  v.  Clough 
Pinson  v.  McGehee 
Pinston  v.  Ivey 
Pintard  v.  Goodloe 
Piper's  Appeal 
Pipkin  V.  Casey 
Pitcher  r.  Rigby 

V.  Toovey 

Pitney  v.  Ererson 

Pitt  V.  Jackson 

V.  Pitnay 
Pitt's  Case 
Pitts  V.  Bonner 

V.  Cottingham 

V.  Edelph 

V.  James 

V.  Pelham 

V.  Pitt 

Pittsfield   Savings   Bank  v. 

Berry 


863 
239 
275 
814 
203 
536 
918 
324 
602  IV 
165 
848,  876 
171 
830 
701 
121 
348 


310 


Planck  V.  Schermerhorn    287,  595,  598 

Planters'  Bank  v.  Prater  828 

Platel  V.  Craddock  438 

Platmone  v.  Staple  103 

Piatt  V.  McClure  602  ee 

V.  New  York  Railway  757 

V.  St.  John's  College  700 

Player  v.  Nicholls  312 

Plowman  v.  Riddle  236 

Pluman  v.  Slocura  429 

Plumb  V.  Fluitt  223 

Plumbe  V.  Neild  544,  545 

Plume  V.  Beale  182 

Plumer  v.  Reed  206,  215 


Section 

Plymouth  v.  Hickman  82 

Plympton  v.  Boston  Dispensary       554 

V.  Fuller  566 

V.  Plympton  466 

Poage  V.  Bell  330 

Pocock  V.  Reddington       453,  457,  460, 

468,  508,  844,  902 

Podmore  v.  Gunning  82,  181,  216 

Poillon  V.  Martin 

Poindexter  v.  Blackburn 

V.  Jeffries 

Pole  V.  Pietsch 

Pole  V.  Pole 


203,  438 

546,  639 

627,  629 

510 

54,  143,  145,  147 

814 

71 

680 

907 

432 

585 

757 

647,  649 

152 

38,  231,  272 

514,  517 

602c/rf 

433,  584,  863,  869 

261 


Polk  V.  Robinson 
Pollard,  Ex  parte 
V.  Cleveland 
V.  Downes 
V.  Doyle 
V.  Greenville 
V.  Maddox 
V.  Merrill 
Pollard's  Trusts 
PoUexfen  v.  Moore 
Pollock  V.  Croft 

V.  Keasley 

Pomfret  v.  Winsor 

Pond  V.  Hine 

Ponder  v.  McGruder  328 

Pontet  V.  Basingstoke  Canal  Co.      752 

Pool  V.  Bate  512 

V.  Cummings  240 

V.  Dial  481 

V.  Harrison  '65,  160 

V.  Lloyd  167 

V.  Morris  628 

Poole  V.  Franks  820 

V.  Glover  602  j 

V.  Munday  407,  454,  467 

I'.  Pass  243,  330,  602,  901,  910 

Pooley  V.  Quilter  195,  199,  428 

Poor  V.  Hazleton  188,  639,  641 

Poor  of  Chelmsford  v.  Mildmay      742 

Pope  V.  Brandon  602  e 

V.  Burlington  Savings  Bank       82 

V.  Durant  602  q 

V.  Elliott  386  a,  555 

V.  Farnsworth  851 

V.  Jackson  610 

V.  Pope  113,  114 

V.  Whitcomb        250  255,  257,  258 


Pophara  V.  Bamfleld 

V.  Brooke 
Popkin  V.  Sargent 
Porcher  v.  Reid 

V.  Daniel 
Porey  v.  Juxon 
Portarlington  v.  Soulby 
Porter  t-.  Bank  of  Rutland 

V.  Doby 

V.  Dubuque 

V.  Morris 


308 

178,  210 

723 

655 

668 

94 

71,72 

86,  242 

305,  369,  370 

237 

330 


INDEX   TO    CASES   CITED. 


CXI 


Section 

Section 

Porter  v.  Raymond 

330 

Prance  v.  Sympson 

862 

('.  Tournay 

547 

Prandley  v.  Fielder 

668 

V.  Watts 

901 

Prankerd  v.  Prankerd 

126 

,  146,  147 

V.  Williams 

590 

Prather  v.  McDowell 

765 

V.  Woodruff 

195 

Pratt  V.  Adams 

596 

,  597,  600 

Porter's  Case 

693,  700 

V.  Ayer 

81 

Portington  v.  Eglington 

189 

V.  Barker 

190 

,  204,  210 

Portington's  Case,  Lady 

94 

V.  Beaupre 

158,  814 

Portland,  &c.  i 

Steamboat  Co. 

V.  Church 

117 

V.  Locke 

828 

V.  Flamer 

66 

Portlock  V.  Gardner 

228. 

246.  745, 

V.  Jenner 

671 

864 

865 

907,  923 

V.  Mathew 

66 

Portmore  v.  Morris 

226 

V.  Oliver 

768 

V.  Taylor 

188 

V.  Philbrook 

171,  175 

Portsmouth  v.  Fello 

ws 

275,  282 

V.  Pond 

167 

Posey  V.  Cook 

305 

V.  Rice 

499 

Postell  V.  Postell 

380 

V.  Sladden 

157,  158 

Potter  V.  Chapin 

748 

V.  Thornton 

195 

V.  Chapman    19,  505 

507 

510,  511 

V.  Vanwyck 

232 

V.  Gardner 

598, 

794, 

■795,  800 

Pray  v.  Hedgeman 

398 

V.  Jacobs 

231 

Pray  v.  Pierce 

299,  302 

V.  McDovvall 

243 

Pray's  Appeal 

440,  465 

V.  Pearson 

205 

Preachers'  Aid  Soc.  v.  Rich 

724,  730, 

V.  Saunders 

217 

748 

V.  Thornton 

733, 

736,  748 

V.  England 

300,  312 

V.  Thurston 

724 

Prendergast  v.  Lushington 

439 

Pottow  V.  Fricker 

319 

V.  Prendergast    450, 

451, 

509,  510, 

Potts,  Ex  parte 

275, 

280, 

282,618 

611, 

547,  548 

V.  Potts 

872 

Prentiss  v.  Hall 

920 

V.  Philadelphia 

Assoc 

710 

Presant  v.  Goodwin 

119 

V.  Richards 

555 

Presbyterian  Cong.  r.  Johnston  17,  328 

Potts's  Appeal 

6.52 

Prescott  V.  Pitts 

262 

Powell  V.  Att'y-Gen 

69!) 

V.  Walker 

322 

V.  Brandon 

380 

V.  Ward 

843 

V.  Cleaver 

4.55 

V.  Wright 

171 

V.  Cobb 

194 

Presley  v.  Davis 

615,  863 

V.  Evans 

438, 

440, 

444,  465 

V.  Stribling 

3.30 

V.  Glen 

312 

Preston  v.  Casner 

82 

V.  Glover 

430 

Preston  v.  Grand 

885 

V.  Hankey 

665 

V.  McMillan 

127 

V.  Knox 

343,  414 

V.  Melville 

544,  545 

V.  Merritt 

327,  437 

V.  Tubbin 

222 

V.  Monson,  &c.  Manuf.  Cc 

126, 

Prevo  V.  Walters 

126 

132,  137 

Prevost  V.  Clarke 

112.  251 

V.  Murray     199 

,228, 

229, 

2.30,  666 

V.  Gratz  82,  197,  205 

228,596,745, 

V.  Powell 

126, 

183, 

468,  918 

850, 

863, 

865,  918 

V.  Price 

361, 

362,  828 

Prewett  v.  Buckingham 

863 

V.  Tuttle 

409,  411 

V.  Coopwood 

194 

V.  Wright 

885 

V.  Laud 

602  0.  661 

Power  V.  Lester 

684 

Price,  Ex  parte 

480 

Powers  V.  Bergen 

610 

V.  Anderson 

440, 

544,  545 

V.  Hale 

187 

V.  Berrington 

3.5,  189 

Powerscourt  v.  Powerscourt 

701,  729 

V.  Blakemore       775, 

837, 

841,  842 

Powis  V.  Burdett 

580 

V.  Brown 

127 

V.  Corbett 

568 

V.  Byrn 

228, 

229,  869 

Powlett  V.  Herbert 

419, 

466, 

844,  900 

V.  Cutts 

918 

Powys  V.  Blagrave 

477, 

540,  5.52 

V.  Dewhurst 

182 

V.  Capron 

506 

V.  Gibson 

348 

V.  Mansfield 

144 

V.  Great  Western  Railway 

752 

Poytliress  )'.  Poythress 

819 

V.  Hewitt 

170 

■ Pracht  &  Co.  v. 

Lange 

487  a 

V.  Huey 

766 

CXll 


INDEX    TO    CASES    CITED. 


Price  V.  Loaden 
V.  Lovett 
r.  Maxwell 
r.  Minot 

V.  ISIulford 

V.  Pickett 
V.  Price 
V.  Reeves 

Price's  Appeal 


Section 

907 

69 

697,  700,  730,  748 

17,  82 

86o,  805 

556 

98,  100,  108,  219 

92 

860,  869,  999 


Pricliard  V.  Ames  617,  648 

Pridd}'  V.  Rose  69 

Pride  v.  Fooks    397,  417,  457,  462,  472. 

844,  894,  902 

Prideaux  v.  Lonsdale  104,  194 

Priestley  v.  Lamb  636 

Priestman  v.  Tindall  848,  876 

Primrose,  In  re  922,  928 

V.  Bromley  260 

Prince  v.  Heylin  862 

V.  Hine  618,  915 

V.  Logan  618 

V.  Sisson  299 

Princeton  v.  Adams  733 

Prindle  v.  Holcombe  266 

Pring  V.  Pring  216 

Pringle  v.  Allen  541 

Prior  V.  Talbot  263,  574 

Prise  V.  Sisson  304,  357 

Pritchard  v.  Brown  137,  165,  299 

V.  Juinchant  253 

V.  Wallace  127 

Probate  Court  v.  Niles  639 

Proctor  V.  Thrall  184 

Proof  r.  Ilines  192,  203 

Prop,   of   Brattle    Sq.  Church    v. 

Grant  380,  385 

Proscns  v.  Mclntire  131,  143 

Prosser  v.  Edmonds  69 

Proudfoot  V.  Hume  827 

Proudley  v.  Fielder  626 

Provost  of  Edinburgh  v.  Aubrey    785, 

741 

Pryn  v.  Bvrne  229 

Prvor  v.  Hill  632,  633 

Pugh,  Ex  parte  636,  657 

V.  Bell  137,  195,  217 

V.  Currie  127,  136 

V.  Pugh  127,  135 

V.  Vaughan  329 

Pnleston  r.  Puleston  329 

PuUen  V.  Ready  184,  513 

Pulpress  V.  African  Church  511,511  a. 

720 

Pulteney  v.  Warren  871,  872 

Pulvertoft  V.  Pulvertoft  98,  100,  108, 

367 

Purcell  V.  MacNamara  206,  230 

Purdew  v.  Jackson  626,  639,  641 

Purdie  v.  Whitney  598,  602  q 

Purdy  V.  Purdy  132 

Purcfroy  v.  Purefroy  585,  597,  602 


Section 
Puryear  v.  Beard  660 

V.  Puryear  660 

Pusey  V.  Clemson  244,  918 

V.  Desbouvrie  184 

Pushman  v.  Filliter  112,  113,  116 

Pussnell  V.  Landers  602^ 

Putnam  Free  School  v.  Fisher  499, 501 
Pybus  V.  Smith  306,  655,  667,  670.  847 
Pye,  Ex  parte  96,  98 

V.  George  217,  241,  828 

Pym  V.  Blackburn  226 

V.  Lockyer  388 

Pyncent  v.  Pyncent  881 

Pyron  v.  Mood  263,  303 


Q. 

Quackenboss  v.  Southwick  281 

Quackeiibush  v.  Leonard   132,  428,  770 

Quarles  v.  Lacy  602  o,  602  y,  771 

Quarrell  r.  Beckferd  915 

Quayle  v.  Davidson  112, 123 

Queen  i\  Abraliams  17 

V.  Commissioners  328 

V.  Norfolk  Comm'rs  478 

V.  Orton  17 

Queen's  College,  In  re  743 

Queen's  College  Case  743 

Quigley  v.  Graham  676 

/.'.  Gridley  231 

Quinn  v.  Marblehead  Social  Ins.  Co.   98 
V.  Shields  82 


R. 


Raby  v.  Ridehalgh  457,  467,  848 

Rachfield  v.  Careless  94, 150 

Rackham  v.  Siddall  245,  265,  304, 

315,  337,  846 
Radburn  v.  Jervis  572 

Radciiffr.  Radford  127 

Radcliffe,  In  re  248 

Radsall  v.  Radsall  162 

Raffertv  v.  Mallory  197 

Raffety  v.  King  856 

Ragan  v.  Walker  127 

Rahn  v.  McElrath  591,  602 

Rahun  v.  Rahun  82 

Raiford  v.  Raiford  918 

Raikes  v.  Ward       112,  117,  118,  386  a, 

620 
Railroad  Co.  (G.  C  &  S.)  v.  Kelly   207 

Railsback  c.  Williamson  137 

Railton  v.  Matthews  178 

Railway  v.  Barker  810 

Railwaj'  Co.  v.  Ailing  873 

R.  &  S.  R.  R.  Co.  V.  Miller  910 

Rainsford  v.  Rainsford  612,  847 

Rakestraw  v.  Hamilton  232,  238 


INDEX   TO    CASES   CITED. 


CXIU 


Section 

Ralston  v.  Telfair        150,  15D,  891,  9U0 

Kamage  v.  Kamage  126 

Kamey  v.  Green  541 

Ramsay  v.  Joyce  213 

V.  Marsh  298,  299,  301,  306 

Ramsborger  v.  Ingrahara  680 

Ranisbottom  r.  Parker  192 

Ramsdall  v.  Craighill  040 

Rarasdell  v.  Edgarton  212,  291 

V.  Sigerson  592 

Ramsden  v.  Hylton  184,  186 

Ramsey  v.  Merriain  602  s,  602  v 

V.  Ramsey  918 

Randal  v.  Hearle  112 

V.  Randal  111 

Randall  v.  Bookey  151,  154 

V.  Constans  122,  226 

V.  Errington  195,  851,  807 

V.  Morgan  79,  208 

V.  Payne  515 

V.  Phillips  136,  162 

i^.  Russell  538,647 

Handle  v.  Gould  672 

Randolph  v.  Russell  538,  547 

V.  Wendel  380 

Rankin  v.  Bancroft  &  Co.         129 

Rankin  v.  Duryer  593 

V.  Harper  126 

V.  Lodor  585,  593 

V.  Porter  206 

V.  Rankin  766 

Ranaome  v.  Burgess  612,  615 

Rapalje  v.  Hall  468,  918 

Raphael  v.  Bank  of  England  837 

V.  Boehm               471,  472,  847,  901 

Rashleigh  v.  Master    566,  747,  891,  894 

Rastel  V.  Hutchinson  135 

Ratcliffe  v.  Dougherty  676 

V.  Ellison  226 

V.  Graves  464 

V.  Huntley  674 

V.  Winch  440,  482 

Rathburn  v.  Clark  602  r 

V.  Platner  596 

V.  Rathburn  162 

Ravisies  v.  AUston  591 

Rawe  V.  Chichester  196 

Rawleigh's  Case  147 

Ravvlings  v.  Adams  324 

V.  Fuller  874 

Rawlins  v.  Goldfrap  615 

Rawson  v.  Lampeman  299 

V.  Nicholls  682 

Ray,  E.r  parte  647,  648 

V.  Adams  112 

V.  Doughty  415,  417,  418 

V.  Rung  322 

V.  Simmons  99 

Rayboid  v.  Raybold      82,  127,  900,  018 

Raymond  v.  Holden  17,  328 

V.  Webb  764,  770 


Section 
Rayner  v.  Mowbray  250,  257 

r.  Pearsall  225 

Raynes  v.  Raynes  454 

Rea  V.  Williams  136 

Reach  v.  Kennegate  181,  226 

Read  v.  Devaynes  272 

V.  Head  544,  545 

V.  Huff  143 

V.  Lichfield  571 

V.  Power  320 

V.  Robinson  97,  259,  593 

V.  Snell  359,  363,  369 

V.  Steadman  94,  152,  437 

V.  Truelove  261,  264,  268,  401 

Reade  v.  Livingstone  647 

V.  Reade  342,  871,  872 

V.  Silles  724 

V.  Sparkes  886,  888,  900 

Ready  v.  Kearsley  75,  299 

Rearich  v.  Svvineheart  226 

Rede  ;;.  Oakes  786 

Redenour  v.  Wherritt  260,  261 

Redfern  v.  Middleton  299 

Redford  v.  Catron  235 

V.  Gibson  232,  235,  237,  239 

Redheimer  v.  Pyron    598,  794,  798,  800 

lledington  w.  Redington  126,  131, 

139,  143,  145,  146,  147,  347 

Red  wick,  In  re  275 

Redwood  v.  Riddick  863,  880 


Reece  v.  Allen 

17,  328,  602  aa 

V.  Frye 

433,  863 

Reech  v.  Kennegal 

900 

Reed  v.  Beazley 

672,  673 

V.  Dickey 

217 

i".  Gordon 

301 

V.  Jolmson 

601 

V.  Lukens 

82,  122,  231 

V.  Marble 

438 

V.  Norris 

206 

V.  O'Brien 

102,  878 

V.  Warner 

206 

V.  Whitney 

324,  342 

Reede  v.  Emery 

590 

Reeder  v.  Barr 

242 

Rees,   Ex  parte 

282 

V.  Keith 

633,  640 

V.  Livingston 

82 

V.  Waters 

627,  628,  631 

V.  Williams 

315,  853,  469 

Reese  r.  Holmes 

633 

V.  Wallace 

226 

V.  Wyman 

171 

Reeside  v.  Peter 

764,  770,  782 

Reeve  v.  Att'y-Gen. 

40,  308,  325,  705, 

721,  722,  729,  731 

V.  Parkins 

816 

V.  Rocher 

632 

V.  vStrawn 

133 

Reeves  v.  Baker 

112,  113 

V.  Brymer 

615 

cxiv 


INDEX   TO   CASES   CITED. 


Section  | 

Section 

Reeves  v.  Dougherty 

855 

Rex  V.  Wallace 

270 

r.  Heme 

514 

Rliam  V.  North 

205 

Reformed  Dutch  Church 

V.  Mott     744  1 

Rhea  v.  Tucker 

132 

Reggs  V.  Swan 

82 

Rliett  V.  Mason 

119,  250 

Retina  v.  Fletcher 

846  ! 

Riiinelander  r.  Barrow 

229 

"  V.  Shee 

328 

Rhoades  v.  Rhoades 

615,  616 

Rehdcn  v.  Wesley       417, 

446, 

848,  876 

R.  I.  Hospital  Trust  Cc 

).r.01ney723 

Reid  V.  Bank  of  Mobile 

828 

Rhodes  v.  Bates 

104,  204 

Reid  V.  Blackstone 

112 

V.  Green 

126,  221 

V.  Fitch            82,  88, 

127, 

142,  143 

V.  Sanderson 

199 

V.  Gordon 

6, 

321,  765 

Rice  V.  Barrett 

23 

V.  Lamar 

655,  661 

Rice  V.  Burnett 

803,310,311 

V.  Morrison 

324 

V.  Cleghorn 

195,  198 

V.  Mullins 

433,  782 

V.  Gordon 

187 

V.  Reid              79,  82, 

248, 

277,  297 

V.  Rice 

127,  226 

V.  Shergold 

511  b 

i\  Satterwhite 

380 

V.  Vanarsdale 

97 

V.  Thompson 

639 

Reil  V.  Baker 

602  66 

V.  Tonnele 

615,  617 

Reilly  i\  Whipple 

95 

Rich  V.  Beaumont 

656 

Re  in  hard  v.  Bank  of  Kentucky        593 

V.  Cockell 

647,  666,  668 

Relf  V.  Eberly 

861 

V.  Jackson 

226 

Relfe  V.  Relfe 

234 

Richards  v.  Baker 

516 

Reniick  v.  Butterfield 

602  i; 

V.  Chambers 

633.  655 

Remnant  v.  Hood 

903  a 

V.  Delbridge 

96,99 

Ren  V.  Bulkeley 

784 

V.  Hazzards 

591 

Renard  v.  Graydon 

592 

V.  Holmes           602  o. 

602  p,  602  M, 

Rendlesliam  v.  Meux 

768,  784 

602  V,  782 

Rene  v.  Oakes 

773 

V.  Learning 

238 

Renew  v.  Butler 

195 

V.  Lewis 

213 

Renneeker  v.  Scott 

675 

V.  Manson 

127 

Rennie  v.  Ritchie 

275,  070 

V.  Merrimack,  &c.  Railway       754, 

V.  Young 

870 

757,  758 

Renwick  v.  Renwick 

631 

V.  Perkins 

818 

Repp  V.  Repp 

232,  239 

V.  Richards 

79,  640 

Reresby  v.  Newland 

578 

V.  Seal 

415 

Resor  i\  Resor 

127 

Richardson,  Ex  parte 

454,  585 

Revel  r.  Revel 

639 

V.  Adams 

181 

Revell  V.  Hussey 

122 

V.  Baker 

232 

Revett  V.  Harvey 

204 

V.  Bank  of  England 

826,  827 

Reynell  v.  Sprye          171 

173 

187,  214 

V.  Bleight 

186 

Reynish  v.  Martin 

512 

514,  517 

V.  Chapman 

116,  259 

Reynolds,  Ex  parte 

198 

209,  275 

V.  Cole 

921 

V.  Bank  of  Virginia 

594 

V.  Day 

133 

V.  Brandon 

476  a 

V.  Eyton 

185 

V.  Bristow 

715 

V.  Hulbert 

271,  503,  876 

V.  Caldwell 

126 

V.  Jenkins             260, 

848,  876,  877 

V.  Jones 

240 

846,  871 

V.  Jones 

195,  230 

V.  Morris 

132 

V.  Larpent 

885 

V.  Stark  County 

31 

V.  Linney 

200 

V.  Walker 

468 

V.  Monnce 

126 

V.  Waller 

191 

V.  Richardson 

97,  98,  101 

Reynolds's  Settlement,  In  re 

275 

V.  Ridgely 

237 

Rex  V.  Anstrey 

511  h 

V.  Rusbridge 

903  rt 

V.  Commissioners 

910 

V.  Spencer 

430 

V.  Essex 

910 

V.  Stodder    310,  312, 

647,  666,  677 

V.  Flockwood 

414 

V.  Taylor 

138 

V.  Lexdale 

286 

V.  Thompson 

226 

V.  Netherseal 

93 

V.  Woodburj' 

336,  338 

V.  Newman 

700 

Richen  v.  White 

645 

r.  North  win  gfield 

214 

Richeson  v.  Ryan 

343 

V.  Partington 

718,  724 

Riclimond  v.  Davis 

484,  736 

INDEX   TO    CASES   CITED. 


CXV 


Section 

602  q 

748 

641 

171 

122 

784 

486 

86 

244 

151,  158 

665 

23U 

645 

126,  137,  139,  242 

386  a,  555 

230 

130 

458,  768 

274,  411,  412 

195,  457 

84 

855 

118,  307,  311,  386  a 

404,  409,  411 

136,  364 

132 

75 

590,  591 

263 

298,  306 

308 

54 

380,  509  a 

243 

239 

436 

V.  Ringgold  418,  419,  420,  458,  463, 

468,  471,  475,  602  v,  769,  770, 

851,  918 

Ringo  V.  Binns  206 

V.  R.  E.  Band  588 

Rinker  v.  Bissell  39 

Ripley  v.  Waterworth  242 

Rippen  v.  Priest  338 

Ripperdone  v.  Cozine  239 

Ripple  V.  Ripple  569 

Rippon  V.  Dawding  656 

V.  Norton  386  b 

Rippy  V.  Gant  189,  190 

Risiiton  V.  Cobb  515,  637 

Ritcliie  1-.  Broadbent  633 

Rittgers  v.  Rittgers  117 

Rittson  V.  Stordy  64,  327 

Rivers  v.  Thayer  644 

Rives  V.  Lawrence  172 

Rivett's  Case  739 

Roach  V.  Gavan  014 

V.  Haynes  511  c 

V.  Hudson  215 

V.  Jelks  468 

Roarty  v.  Mitchell  602  p 


Richmond  v.  Hughes 

V.  Tayloe 
Richwine  v.  Keim 

Rick's  Appeal 

Riuker  v.  Moore 

Rickett's  Trusts 
Ricketts  v.  Bennett 
Riddle  v.  Emerson 

V.  Mandeville 
Rideout  v.  Dovvding 

V.  Lewis 
Rider  y.  Bickerton 

V.  Hulse 

V.  Kidder 

V.  Mason 

V.  Maul 

V.  Rider 

!'.  Sisson 
Ridgeley  v.  Johnson 
Ridge  way,  Ex  parte 
Ridgway  v.  Wharton 
Ridley  v.  Hetman 
Rife  V.  Geyer 
Rigby,  Ex  parte 
Rigden  v.  Vallier 

V.  Walker 
Rigges  V.  Swann 
Riggs  V.  Murray 
Right  V.  Cathill 

V.  Smith 
Riley  v.  Garnett 
Rindle,  Matter  of 
Ring  V.  Hardwick 
Ringliara  v.  Lee 
Ringgold  V.  Bryan 

V.  Malott 


Robards  v.  Wortham 

Kobarts  v.  Haley 

Robb's  Appeal 
Robbins  v.  Bates 
Robenett's  Appeal 
Roberdeau  v.  Rouse 
Robert,  Ex  parte 
V.  Corning 

V.  West 
Roberts,  Matter  of 

V.  Broom 

V.  CoUett 

V.  Dixwell 

V.  Kingsley 

V.  Moseley 

V.  Opp 


Section 

564 

127 

127,  918 

602  m; 

918 

71,  871 

277 

23 

646,  653,  660 

918 

841 

633 

324,  358,  359,  369 

361 

260,  261,  310 

127 


V.  Roberts  100, 103, 104, 165, 195, 214 


V.  Robinson 

V.  Rose 

V.  Spicer 

V.  Tunstall 

V.  Ware 

V.  Wynne 
Robertson  v.  Bullions 

V.  Collier 

V.  Gaines 

V.  Johnson 

V.  Macklin 

V.  Norris 

V.  Paul 

V.  Robertson 

V.  Scott 

V.  Skelton 

V.  Sublett 

V.  Wendell 

V.  Wood 
Robinett's  Appeal 
Robins  r.  Deshon 

V.  Embry 
Robinson,  Matter  of 

V.  Allen 

V.  Bishop 

V.  Briggs 

V.  Butler 

V.  Comyns 

V.  Cox 

V.  Cudwin 

V.  CuUum 

V.  Cuming 

V.  Dart 

V.  Gee 

V.  Geldard 

V.  Grey 

V.  Hardcastle 

V.  Hook 

V.  Huffman 

V.  King 


815  c 

239 

649 

229,  230,  869 

133 

182 

733,  748 

546,  547 

262,  499,  501,  602  m 

366,  662,  815  a 

141 

633,  861 

602  A 

215 

826 

122 

598,  594,  602  e 

901 

864 

470 

343 

287,  588,  590,  592 

259,  277,  282 

253 

881 

202 

602  u 

304 

214 

199 

602  u 

13,  347 

661 

214 

573 

298,  305,  310 

383 

855 

678 

216 


V.  Lowater    597,  795,  802,  803,  805 
V.  Macdonald  68 

;;.  Maulden  67,  330 

V.  Miller  324 


CXVl 


INDEX   TO    CASES   CITED. 


Section  | 

Section 

Kobinson  v.  Pett  259,  428,  904,  91G,  918  | 

Rogers  v.  Soutten 

616 

V.  Presion 

136 

V.  Thomas 

699 

V.  Kobinson         127, 

134,  147,  164. 

V.  Vail 

591 

187,  398, 

440,  457,  458, 

V.  Ward 

661,  680 

462,  468, 

469,  551,  607 

V.  Wheeler 

762 

V.  Smith 

112,  207,  507 

V.  White 

330,  668 

V.  Tavlor 

151,  152 

Rogers's  Appeal 

891,  900 

V.  Ticlvfll              117, 

118,  620,  624 

Rolfe  V.  B  udder 

647 

V.  Townsliend 

583 

V.  Gregory     166,  828, 

840,  861,  865 

V.  Wlieelwright 

671 

Roller  V.  Spilmore 

172 

V.  Woelper 

642 

Rolt's  Case 

693 

Robinson's  Trust,  In  re 

117 

Ronald  v.  Buckley 

607 

Robison  v.  Codman 

322,  324 

Roofer  v.  Harrison 

438 

Robles  V.  Clark 

140,  518 

Rook  V.  Worth 

605,  611 

Robson  V.  Flight           19 

273,  530,  803 

Rooke  V.  Worrell 

572 

V.  Harwell 

86,  226 

Rooker  v.  Rooker 

828 

Roby  V.  Boswald 

678 

Roome  v.  Phillips 

500,  766 

Roch  V.  Callen 

862 

Roosevelt  v.  Ellithorp 

891 

Rochdale  Canal  Co.  v.  King:              809 

V.  Mark 

559 

Roche,  In  re        275,  279 

290,  291,  292 

V.  Roosevelt 

441 

V.  Farnsworth 

199 

Root  V.  Blake 

126 

V.  Hiirt                  463 

464,  468,  894 

Roper  V.  Halifax 

597,  785 

V.  O'Brien 

851,  861,  807 

V.  Holland 

17 

Rochell  V.  Tompkins 

661 

V.  McCook 

232,  238 

Rochester  v.  Attorney-General          746 

V.  Radcliffe 

152 

Rochford  v.  Hackman 

388,  555 

V.  Roper 

679 

Rochfort  V.  Fitzmaurice 

359,  360,  361, 

Roscommon  v.  Fowke 

511c 

362,  369 

371,  372,  374 

Rose  V.  Crockett 

275 

Rockwood  y.  Rockwood 

182 

V.  Cunningham 

93 

Roden  v.  Jaco 

602  p 

V.  Gibson 

126 

V.  Murphy 

330 

V.  Rose 

747,  891 

Rodgers  i;.  Marshall 

107,  108 

Roseberry  r.  Taylor 

584 

V.  Rodgers 

541 

Roseboom  v.  Mosheer 

262,  270,  785 

Rodman  v.  Munson 

783 

Rosenberger's  Appeal 

852 

Rodney  v.  Chambers 

672 

Rosevelt  v.  Fulton 

171,  187 

Rodriquez  v.  Hefferman 

243 

Rose  Will  Case 

724 

Roe  V.  Jeffery 

380 

Roshi's  Appeal 

730,  733 

V.  Read 

336,  337 

Ross  V.  Barclay 

499,  500 

V.  Tranmer 

379 

V.  Duncan 

65 

Rogan  V.  Walker 

602  f/ 

V.  Ewer 

655 

Roger's  Trust 

550 

V.  Gill 

608 

Rogers  v.  Acaster 

633 

V.  Goodsall 

509 

V.  Adams 

828 

V.  Hegeman 

182,  136 

V.  Bonner 

239 

V.  Horton 

222 

V.  Bumpass 

039 

V.  Morton 

639 

V.  Daniel 

843 

V.  Ross 

826 

V.  Dill 

610 

V.  Whitson 

237 

V.  Earl 

226,  361 

V.  Willoughby 

672 

V.  Fales 

664 

Ross's  Trust 

670 

V.  Jones 

223 

Rossett  V.  Fisher 

602?; 

V.  Linton 

883 

Rossiter  v.  Trafalgar  Life  Assurance 

V.  Ludlow 

310,  660 

Co. 

779 

V.  Marshall 

828 

Rosslyn's  Trust 

395 

V.  Murray 

133 

Rothmaler  v.  Myers 

272 

V.  Patterson 

606 

Rothwell  V.  Dewes 

126,  135,  215 

V.  Rogers       59,  128, 

137,  151,  153, 

I'.  Rothwell 

826,  827 

205,  297,  559, 

562,  600,  672, 

Roupe  V.  Atkinson 

6.38 

698,  826 

Routh  V.  Howell          406, 

443,  465,  914 

V.  Simmons 

134,  215 

V.  Kinder 

595,  877 

V.  Skillicorne 

795,  796,  800 

Routledge  v.  Dorrill 

379 

V.  Smith 

661 

Row  V,  Dawson 

68 

INDEX   TO    CASES    CITED. 


CXVII 


Kow  r.  Jackson 
Eowan  v.  Chute 

V.  Lamb 
Howe  V.  Beckett 

V.  Chichester 

V.  Lewis 

V.  Rowe 
Eowell  I'.  Freese 
Rowland  v.  Best 

V.  Morgan 

V.  Witherden 
Ilowletts  V.  Daniel 
Kowley  v.  Adams 

V.  Rowley 

V.  Union 
Rowton  V.  Ilowton 
Roy  V.  Beauforts 

V.  Gibbon 

V.  McPherson 

Royall  V.  McKenzie 
Royds  V.  Royds 
Royer's  Appeal 
Rucker  v.  Abell 
Rudisell  v.  Watson 
Rudland  v.  Crozier 
Rudyard  v.  Neirin 
Rufl"  V.  Summers 
Ruffln  V.  Harrison 
Rugby  School 

-Rugely  0.  Robinson 


Section 
645 
122 
199,  602  aa 
490 
538 
490 
451,  066 
137 
468 
373,  390,  476  a,  928 
444,  403 
299 
438,  470,  535,  536 
511  a 
665,  691,  849 
84,  324 
l'.i2 
825,  827 
149 
415 
901 
458,  463,  606,  607 
149 
647,  649,  651 
119 
635 
918 
263 
700 
815  a 


RumboU  V.  RumboU 
Rumfelt  V.  Clemens 
Rumph  V.  Abercrombie 
Rundle  V.  Rundle 
Runillett  V.  Dale 
Runkle  v.  Gaylord 
Runyan  v.  Coster's  Lessee 

Rupp's  Appeal 

Rush  V.  Vought 
l{ush's  Estate 
Rushloy  V.  Mansfield 
Rusiiworth,  Ex  parte 
Rushworth's  Case 
Russell  V.  Allen 

V.  Clark 

?;.  Clowes 

V.  Coffin 

V.  Dickson 

V.  Duflon 

V.  Jackson 

V.  Kellett 

V.  Kennedy 

V.  Lasher 

V.  Lode 

V.  Loring 

V.  Milton 

V.  Peyton 

V.  Plaice 

V.  Russell 

V.  Southard 


144,  145,  146' 

680,  685 

187,  189 

139 

590 

602  2 

45 

127 

173,  664 

459,  460 

189 

210 

196 

133,  138,  142,  730 

244 

437 

299,  302 

652 

602 /f 

77,  83,  93,  116,  126, 

128,  133,  714 

624,  699,  726 

251 

594 

126 

544 

815  n 

24, 129,  863 

225,  768,  809 

768,  769 

220 


Rnssell  r.  Woodward 
Russell's  Appeal 

Case 

Patent 
Ruston  V.  Ruston 
Rutgers  v.  Kingsland 
Rutherford  v.  Ruff 
Rutland  v.  Rutland 
Rutledge,  Ex  parte 

V.  Smith 
Ryall  V.  Rolls 

V.  Ryall 
Ryan  v.  Bibb 

V.  Dox 

V.  Doyle 
V,  Porter 

V.  Spurill 
Rycroft  v.  Christy 
Ryder,  Matter  of 

17.  Bickerton  453,460,462 

V.  French 

V   Hulse 
Ryland  v.  Smith 


562, 


79,  83,  320, 

68,  345,  438, 

82, 


102,  104, 


Section 
593 
104 
52,53 
67 
565,  571 
218 
191 
154 
556 
598,  798 
835,  837 
835,  839 
328,  330 
215,  226 
217 
820  a 
689 
105,  649 
616 
,467,848 
849 
676,  678 
639,  640 


Saagar  v.  Wilson 
Sabin  v.  Heape 

V.  Stickney 
Sacia  v.  Berthoud 
Sadd,  In  re 
Sadler  v.  Hobbs 


V.  Houston 

V.  Lee 

V.  Pratt 
Sadler's  Appeal 
Safford  v.  Hind 

V.  Rantoul 
Sale  V.  Moore 

V.  Saunders 
Salem  Mill  Dam  v.  Ropes 

Salinas  v.  Pearsall 

Salisbury,  In  re 

V.  Bigelow 
Salmon  v.  Cutts 

V.  Hoffman 
Salomans  v.  Laing 
Saloway  v.  Strawbridge 
Salsbury  v.  Bagott 

V.  Black 

Salt  V.  Chattaway 
Salter,  Ex  parte 

V.  Bradshaw 

V.  Cavanagh 
Saltern  i\  Melhuish 
Saltmarsh  v.  Barrett 

V.  Bean 


197 

785,  800,  801,  802, 

803,  805 

602  0,  602  V 

225,  810 

907 

261,  416,  417,  419, 

421,  422 

660 

543 

511a 

217 

142,  206 

79 

112,  113,  116 

633 

757 

127 

605,  610 

498,  602  k 

195,  199,  202 

232 

877 

340  494,  495 

830 


171 
160 
617 

188 
151,  855 

183 

152,  158,  468, 

470,  471 

209 


CXVIU 


INDEX   TO    CASES    CITED. 


Section 

Saltmarsh  v.  Burn  602  v 

Saltonstall  v.  Sanders  68,7,  699,  705, 

709,  712,  720,  724,  748 

Saltoun  I'.  Hanston  2o0 

Salusbury  v.  Denton  248,  251,  255, 

256,  714 

Salway  v.  Salway  443,  6o5 

Sanimes  v.  Kiclunond  894 

Sam{)ay  v.  Gould        287,  288,  375,  5U9 

Sample  v.  Coulson  134,  137 

Sandars  v.  Richards  809 

Sanders  v.  Ueligne  218 

V.  Miller  90:3_« 

V.  Page  633,  653 

V.  Rodney  672 

V.  Rogers  460,  847 

Sanderson  v.  Pearson  918 

V.  Walker              128,  195,  198,  902 

V.  White                724,  780,  744,  748 

Sanderson's  Trust    119,  152,  386,  386  b 

Saudford  v.  Flint  602  ee 

V.  Jodrell  882 

Sandford  Charity  282 

Sandon  v.  Hooper  915 

Sands  v.  Nugee  502 

Sandys  v.  Sandys  578,  892 

V.  Watson  900 

Sanford  r.  Irby  305 

Sangston  v.  Gaither  592 

Sangster  ;;.  Love  602  n 

Sansom  v.  Rumsey  183 

Sargent  v.  Baldwin  104 

Sargent  r.  Bourne  118 

V.  Franklin  Ins.  Co.  98 

V.  Howe              602  d,  602  i,  602  n 

V.  Sargent  551,  899 

Sartill  V.  Robeson  324 

Satterwhite  v.  Littlefield  918 

Saulsbury  v.  Denton  112 

Saunders  v.  Bournford  347 

r.  Collin  855 

V.  Cramer  208 

r.  Dehew  217,  218,  828 

V.  Gregory  456 

V.  Houghton  546,  547 

V.  Leslie  235,  236 

V.  Miller  908 

V.  Saunders  891,  896 

V.  Schmaelzle  334,  343 

V.  Vautier  396,  509  n,  622 

V.  Webber  401,  410 

Saunderson  v.  Stearns  262 

Savage  v.  Benhani  639 

V.  Brocksopp  176 

V.  Carroll  842 

V.  Dickson  891 

V.  Foster  53 

V.  O'Neil  676 

V.  Tyers  359 

V.  Williams  204 

Savery  v.  King  202 


Section 
Saville  V.  Tancred  246 

Savings  Bank  v.  Bates  588 

Savings  Fund's  Appeal  927 

Sawyer  v.  Baldwin  903  a 

V.  Birchmore  924 

V.  Hoag  207 

V.  Hovey  186 

Sawyer's  Appeal  262 

Saxon  V.  Barksdale  225 

Saxon  Life  Ass.  Co.,  In  re  851 

Say  v.  Barnes  851,  918 

V.  Barwich  171,  191 

Saye  &  Sele  v.  Jones  312 

Sayer's  Trusts  385 

Hnyers,  Ex  parte  345,835,837 

Sayles  v.  Smith  602  u 

Saj're  v.  Flourney  639,  642 

V.  Frederick  137 

V.  Town  sends  132 

Scales  V.  Baker  842 

V.  Maude  98,  99,  101 

Scarborough  v.  Borman   646,  648,  652, 

653 

V.  Parker  900 

Scarisbrick  v.  Skelmersdale       160, 393 
Scarpellini  v.  Acheson  640 

Scarsdale  v.  Curzon  364,  373,  389 

Scattergood  v.  Edge  377,  379 

i\  Harrison  432 

Scawen  v.  Scawen  146,  147 

Schaffer  v.  Lauretta  311 

V.  Wadsworth  920 

Schaffner  v.  Grutzmacher  127 

Schafroth  v.  Ambs  652,  680 

Suhanck  v.  Arrowsmith  576 

Scheffermeyer  v.  Schaper  181 

Schell,  In  re  918 

Schemerhorn  v.  Barhydt   238,  562,  566 
Sclienck  v.  Ellenwood  782 

V.  Schenck  264,  341,  344 

Schermerhorne  v.  Schenck        204,  344 

419 

V.  Schermerhorne  581 

Schieffelin  v.  Stewart  462,  471 

Schlaeper  v.  Corson  127 

Schlessinger  v.  Mallard  160 

Schley  v.  Brown  820  a 

Schley  r.  Lyon  311,  830 

Schnebly  v.  Ragan  234 

Schnure's  Appeal  569 

Scholefield  v.  Redfern  544,  551 

V.  Templar  172 

Scholey  v.  Goodman  672 

Scholle  v,  SchoUe  195 

School  r.  Dunkleberger  117,  328 

V.  Kirwan  463 

V.  McCuUy  769 

School  Directors  i:  School  Direc- 
tors 865 
School  Dist.  Greenfield  i'.  First  Na- 
tional Bank  448 


INDEX   TO    CASES    CITED. 


CXIX 


School  Trustees  v.  Wright 
Schoolbred  v.  Drayton 
Schooniuaker  v.  Sheely 

V.  Van  Wyke 
Schoonoven  v.  Pratt 


Section 

84 

501 

359 

4-28 

602  .r 


Schouler,  Petitioner        276  a,  705 

Schroder  v.  Schroder  872 

Schultze  V.  New  York  City        126 

Schuster  v.  Schuster  143 

Schutt  V.  Large  222 

Schutter  v.  Smith  382,  391 

Schuyler  v.  Hoyle  639,  610,  641 

Schwartz  v.  Sears  602  cc 

Schwartz's  Estate  245,  765 

Scoby  V.  Blanchard  137,  165 

Score  I'.  Ford  825 

Scott  V.  Atchison  456 

V.  Becher  816,  818,  827 

V.  Colburn  754 

V.  Davis  195,  428,  670 

V.  Depeyster  207 

V.  Dobson  546 

V.  Dorsey  918 

V.  Freeland  195,  205,  602  w 

V.  Gamble  602  v 

V.  Haddock  850,  864 

V.  Harbeck  82 

r.  Harris  79,  226 

V.  Hastings  438 

V.  Holiingworth  551 

V.  James  633 

V.  Knox  866 

V.  Mann  199 

V.  Moore  361 

V.  Nesbitt  71 

V.  NicoU  873 

V.  Orbinson  232,  237,  239 

V.  Perkins  546 

V.  Rand  275 

V.  Scott  683 

V.  Sierra  Lumber  Co.                 828 

V.  Spashett  629,  632,  636 

V.  Steward  375,  766 

V.  Surnam  58,  239,  345 

V.  Tliompson  210 

V.  Tiiorpe  55 

V.  Tyler        225,  512,  514,  516,  809, 

810,  811,  815 

Scott's  Estate  891,894 

Scounden  v.  Hawley  325 

Scriven  v.  Tapley  645 

Scroggins  v.  McDougald  195 

Scroggs  V.  Scroggs  511  « 

Scroope  V.  Scroope  54,  146 

Scrope's  Case  511  c 

Scrutrgs  r.  Driver  41 

Scudder  v.  Crocker  918 

Scull  V.  Reeves  602  e,  602  m 

Scully  V.  Delany        262,  419   424,  440 

V.  Scully  878 

Sculthorpe  v.  Burgess  161 


Section 

Sculthorpe  v.  Tiffer  439 

Scurlield  v.  Howes     416,  419,  421,  423 

424,  847 

Seaburn  v.  Seaburn  748 

V.  Seagrave  674 

Seale  v.  Seale  366 

Seaman  v.  Cook         126,  127,  128,  132 

V.  Wood  385 

Seamans  v.  Gibbs  816  a 

Sear  v.  Ash  well  103,  107 

Searing  v.  Searing  639,  643,  647 

Searle  v.  Law  96,  100 

Sears  v.  Choate  920 

Sears  v.  Cunningham  119 

V.  Livermore  782 

V.  Putnam  381,  382 

V.  Russell  312,  380,  383 

V.  Shafer  194,  201,  230 

V.  Smith  232,  237 

Seaver  v.  Fitzgerald  381 

Seaver  v.  Lewis  562,  566 

Seaving  v.  Brinkeriioff  592 

Second,  &c.  Churcli  v.  Desbrow       116 
Second  Cong.  Soc.  v.  First  Cong. 

Soc.  711,724,748 

Second  Cong.  Soc.  North  Bridge- 


water  c.  Waring 

328 

Seddon  v.  Connell 

878 

879 

Sedgwick  v.  Stanton 

214 

Seeley  v.  Jago 

108 

Seeling  v.  Crawley 

672 

Seers  v.  Hind 

900 

Seesel  v.  Ewan 

602  0 

Segond  v.  Garland 

660 

Segrave  v.  Kirvvan 

181 

182 

Seguin's  Appeal 

471 

Seibert's  Appeal 

616 

Seibold  v.  Chrisman 

143 

Seichrist's  Appeal 

206 

215 

Seidler's  Estate 

459 

Selatter  v.  Cottam 

904 

Selby  V.  Alston 

13, 

347 

V.  Bowie 

770 

V.  Cooling 

768 

V.  Stanley 

237 

239 

Selden  v.  Vermilyea 

286 

Selden's  Appeal 

82 

Sellew's  Appeal 

764 

Sellick  V.  Mason 

S 

86  a 

Selph  V.  Howland 

681 

Selsey  v.  Rhoades 

206,  228 

229 

Selyard  v.  Harris 

877 

Semphill  v.  Hayley 

512 

Semple  v.  Bird 

232 

Senhouse  v.  Earle 

834 

Sergeant  r.  IngersoII 

218 

Sergison,  Ex  parte 

54 

336 

V.  Sealey 

605 

Servis  v.  Beatty 

232 

Seton's  Decrees 

283 

Settembre  v.  Putnam 

126,  127 

129 

cxx 


INDEX   TO    CASES    CITED. 


Section  , 

Section 

Sewall  f.  Boston  Water  Power  Co.  814  | 

Shaw  V.  Shaw 

129,  137 

1-.  Roberts 

104 

Shaw  V.  Spencer        157, 

1.58,  225,  800, 

c.  Wilmer 

511  b 

809, 

810,  814,  846 

Sewell  r.  Baxter 

139 

V.  Thackray 

191 

V.  Deun 

150 

V.  Turbett 

890 

V.  Moxsy 

101 

V.  Weigh 

314,  315 

Sexton  V.  HoUis 

no 

V.  Wright 

312 

Se}  niour'"u.  Bull 

760 

Shay  V.  Sessamon 

641 

V.  Delancey 

187 

Shearer  v.  Loften 

602  e 

V.  Freer 

82,  863 

Shearin  v.  Eaton 

863 

V.  Milford,  &c.  Railway 

757 

Sheatfield  v.  Sheatfield 

361 

Sevs  V.  Price 

611 

Shee  V.  Hale 

388,  555 

Shajkleford  v.  Bank  of  MobiU 

>         5!)0, 

Sheener  v.  Lautzerbeizer 

590 

591 

Sheet's  Estate 

81,  262 

Shaeffer  v.  Sleade 

173, 187 

Sheffield  v.  Buckingham 

182 

Sliafer  v.  Davis 

184 

r.  Orrery 

379,  516 

Sluitter  V.  Watkins 

501 

Sheidle  v.  Weishlee 

667 

Shakesliaft,  Ex  parte 

848,  876 

Shelborne  v.  Inchquin 

226 

Shales  v.  Sliales 

146,  147 

Shelby  v.  Perrin 

237 

Shall  V.  Biscoe 

232,  238 

V.  Tardy 

126 

Shallcross  o.  Oldham 

204,  210 

Sheldon  ;;.  Dodge 

590 

Shalter's  Appeal 

490 

V.  Dormer 

581,  597 

Shankland's  Appeal 

299,  305,  386  u 

V.  Easton 

784 

Shanley  v.  Baker 

160 

V.  Harding 

133 

Shannon  v.  Canney 

680 

V.  Wildman 

863 

Shapland  v.  Smith 

298 

305,  312 

Shelley  v.  Nash 

88 

Shapleigh  v.  Pilsbury 

299,  748 

Shelley's  Case 

357,  370 

Sharp  V.  Leach 

104 

Shelly  V.  Eldin 

315 

V.  Long 

134,  215 

Shelthar  v.  Gregory 

672 

V.  Maxwell 

676 

Shelton  v.  A.  &  T.  Company    126 

V.  Pratt 

499 

Shelton  v.  Homer 

195,  308,  499 

V.  Sharp       271,  273,  290, 

294,  337, 

V.  Shelton 

75 

844,  503 

V.  Watson 

369,  371 

t;.  Toy 

634 

Shepard  v.  Pratt 

137 

V.  Wright 

869 

Shephard  v.  Stark 

468 

Sharpe  v.  Cossent 

388,  555 

V.  Richardson 

602  rf 

V.  San  P.  Railway 

Co. 

401 

Shepherd  v.  Bevin 

109 

Sharpless  v.  Adams 

829 

V.  Mauls 

469 

V.  Welch 

438 

V.  McEvers     38,  98, 

261,  268,  274, 

Sharpsteen  i\  Tillow 

783, 785 

401,  594 

Sharshaw  v.  Gibbs 

652,  554 

V.  Nottidge 

112, 116 

Shatter's  Appeal 

771 

V.  Philbrick 

602  M 

Shattock  V.  Shattock 

658, 

659,  663, 

V.  White 

143 

849 

Sheppard,  In  re 

282 

Shattuck  V.  Cassidy 

71 

!'.  Smith 

900 

V.  Freeman 

591,  593 

Sheppard's  Trusts,  In  re 

275 

Shaw,  Ex  parte 

336,  337 

Sheppards  v.  Turpin 

865 

V.  Borrer       476,  597.  789 

802,  915 

Sheratz  v.  Nicodemus 

234,  235,  287, 

V.  Boyd 

34 

238,  239 

V.  Bunney 

199 

Sheridan  v.  Jones 

926 

V.  Burney 

97 

V.  Joyce                808 

,  832,  835,  859 

V.  Conway 

891 

V.  Welch 

602  A 

V.  Delaware 

104 

Sheriff  v.  Axe 

432,  904 

V.  Galbraith 

820 

V.  Butler 

671 

V.  Huzzey 

546 

V.  Neal 

206,  215 

V.  Lawless 

112 

,  123,  907 

Sheril  V.  Shuford 

918 

V.  Mitchell 

626,  641 

Sherman  v.  Burnham 

654 

V.  Norfolk  Co.  Railway 

758,  761 

V.  Dodge 

299 

V.  Pickthall 

903  a 

V.  Parish 

467,  602  X 

V.  Read 

143 

V.  Sherman 

669 

V.  Rhodes 

395 

V.  Turpin 

665 

INDEX   TO   CASES   CITED. 


CXXl 


Section 

Sherrard  v.  Carlisle 

002 

V.  Harborougli 

152,  427 

Sherratt  v.  Beiuley 

270,  271,  898 

Sherrington  v.  Yates 

610 

Slierwin  v.  Kenny 

305 

Siiervvood,  In  re 

432,  923 

V.  Amer.  Bible  Soc. 

748 

V.  Andrews 

98 

V.  Read 

411,  602  an 

V.  Smith 

615 

V.  Sutton 

228 

Shewell  v.  Dwarris 

648 

Sliewen  v.  Vanderhorst 

474,  481 

Shibley  v.  Ely 

540,  863 

Shields  v.  Atkins 

433,  863 

Shiers  v.  Higgons 

191 

Shine  v.  Gough 

218 

V.  Hill 

781 

Siiingley,  In  re 

121 

Ship  V.  Hettrlck 

462 

Sliip  Warre,  In  re 

68 

Shipbrook  v.  Hinchinbrook      416,  419, 
421  423,  424,  444 
Shipp  V.  Bowmar  655,  656 

Shipton  L'.  liawlins  876 

Shirley,  Ex  parte  656 

V.  Shattuck  918 

V.  Shirley  51,  277,  646,  647, 

649,  653,  66iJ 

V.  Sugar  Refinery  232,  239 

Shirly  v.  Ferrers  585,  600 

Siiirras  v.  Caig  219 

Shockley  v.  Fisher  286 

Shoemaker  v.  Coram'rs  41 

V.  Smith  132 

V.  Walker  324 

Shoofstall  V.  Adams  75 

Shook  V.  Shook  343,  411,  414,  884 

Shore  v.  Sliore  820 

V.  Wilson  733 

Short  V.  Moore  627,  639 

V.  Wilson  920 

Shortel's  Appeal  851 

Shortz  V.  Unangst  334,  343 

Shotwell  V.  Mott         699,  730,  737,  748 

V.  Murray  184 

Shouk  ('.  Brown  652 

Shovelton  v.  Shovelton      112,  120,  888 
Shrewsbury  v.  Hornbury  705 

V.  Shrewsbury  348,  581,  597 

Shrewsbury,  &e.  Railway  v.  Lon- 
don &  N.  W.  Railway  757 
Shrewsbury  School,  In  re  427 
Shryock  i'.  Waggoner  58,  279 
Shubar  v.  Winding  689,  593 
Shuman  v.  Reigart  641 
Shumway  v.  Cooper  611 
Shunk's  Appeal  918 
Shurtleff  i>.  Witherspoon  918 
Siddon  V.  Charrells  218 
Sidle  V.  Walters                            77,  137 


Section 

Sidmouth  v.  Sidmouth      130,  143,  144, 

146,  147 

Sidney  v.  Shelley  157 

Sieman  v.  Austin  142 

V.  Schunck  142 

Siemers  v.  Schrader  890  a 

Siggers  v.  Evans  270,  593,  596 

Sigourney  v.  Munn  136 

Silcox  V.  Harper  732,  741 

Silk  V.  Prime  567 

Sillibourne  v.  Newport  511 

Silsbury  v.  McCoon  128 

Silverthorn  v.  McKinister         205,  501, 

785 

Sime  V.  Howard  82 

Simes  v.  Eyre  877 

Simmonds  v.  Borland  536 

V.  Palles  593 

Simmons  v.  Drury  569 

V.  Horwood  648 

Simms  v.  Smith  76,  86,  868 

Simon  v.  Barker  714,  729 

Simond  r.  Hilbert  239 

Simons  v.  S.  W.  Railway  Bank        242 

Simpson  v.  Chapman  430 

V.  Gutteridge  244 

V.  Jones  605 

V.  Moore  545 

V.  Munder  232 

V.  Sikes  587 

V.  Simpson  672,  673 

Simpson's  Appeal  262 

Sims  V.  Huntley  602  66 

V.  Lively  698,  794,  795 

V.  Marryal  67 

V.  Sims  662 

Simson  v.  Jones  84 

Simson's  Trusts  455 

Sinclair  v.  Jackson     349,  402,  404,  409, 

411,  412,  415,  628,  529,  779 

Singleton  v.  Lowndes  919 

V.  Scott  254,  408,  602  o,  602  q, 

602x,  602  z/,  6022,  602  aa 

Sisson  V.  Shaw  615,  618 

Siter  V.  McClanachan  640 

Siter's  Case  633,  640,  641,  643 

Sitwell  V.  Bernard  480,  550,  551 

Skeats  v.  Skeats  143,  146,  147 

Skeggs  V.  Nelson  238 

Skett  V.  Whitmore  86,  137 

Skillman  v.  Skillman  147 

Skingley,  In  re  121,  477,  652 

Skinner  v.  Dodge  243 

V.  James  126 

V.  McDonall  84 

V.  Skinner  863 

Skinner's  Appeal  641,  642 

Trusts,  Re  1 19 

Skipwith  V.  Cunningham  591,  592,  593, 

602  e,  602  aa 

Skirwing  v.  Williams  451 


CXXll 


INDEX   TO    CASES   CITED. 


Section 

Section 

Skrine  i\  Simmons 

226 

Smith  V.  Calloway 

863,  869 

V.  Walker 

65 

V.  Cameltord 

126,  665 

Skrymsher  v.  Northcote 

157, 

160,  397 

.  I'.  Clay 

228,  229,  855 

yiack  V.  Slack 

146,  147 

■;;.  Colvin 

602  66 

Slade  V.  Eigg 

761,  878 

V.  Conkwright 

591 

V.  Van  Vechten 

197,  428 

V.  Cowdery 

513,  517 

Slaney  v.  Witney 

272 

V.  Cuff 

212 

Slanning  v.  Style 

541 

V.  Death 

765 

Slater  v.  Hurlebut 

121,  920 

V.  Doe 

602  rf 

Slater  v.  Wheeler 

414,  877 

V.  Drake 

195,  205 

Slaymaker  v.  Bank 

641 

V.  Dresser 

907 

V.  St.  Johns 

75 

V.  Dunwoody 

380 

Slee  V.  Manhattan  Co. 

602  c,  602  n 

V.  Evans 

578 

Sleech  v.  Thornington 

637 

V.  Everett 

809 

Sleeper  v.  Iselin 

99 

V.  Foley 

578 

Sleight  V.  Lawson 

862 

V.  French 

849 

V.  Read 

676 

V.  Frost 

602  w 

Slemon  v.  Schurch 

142 

v.  Gillam 

858 

Slevin  v.  Brown 

311, 

312,  475 

V.  Guyon 

795,  796 

Sloan  V.  Cadogan 

98, 

101,  102 

V.  Harrington 

699,  920 

i\  Coolhaugh 

602  ee 

V.  Henry 

677 

Slocombe  v.  Glubb 

213 

V.  Hewett 

677 

Slocum  V.  Barry 

819 

V.  Hollenback 

134 

;•.  Marshall 

77, 

137,  201 

V.  Howe 

680 

V.  Slocum 

127,  783 

V.  Howell 

82,  83,  85,  139 

Sloman  v.  Bank  of  England 

929 

V.  Isaac 

428 

Sloo  V.  Law                  276, 

413, 

427,  822 

V.  Jameson 

17 

Sloper  V.  Cottrell 

17,  105 

V.  Kane 

627 

Small  V.  Atwood        173, 

639, 

841,  849, 

V.  Kay 

210 

851,  874 

V.  Kennard 

471 

V.  Ayleswood 

260 

?;.  King 

54,  151 

V.  Ludlow 

590 

V.  Kinney 

490,  771,  783 

V.  Marwood           270, 

273, 

585,  593 

V.  Knowles 

259,  260,  261 

Smart  v.  Bradstock 

885 

V.  Lansing 

428 

V.  Prujean 

93,  108 

V.  Leavitt 

593 

Smedley  v.  Varley 

202 

V.  Lockabill 

299 

Smee  v.  Martin 

613 

V.  Lowell 

591 

Smethurst  v.  Hastings 

458 

V.  Lyne 

104 

Smiley  r.  Dixoa 

538 

V.  Matthews 

79,  83,  633 

V.  Pearce 

171 

V.  Maxwell 

361 

V.  Wriglit 

324 

V.  McConnell 

414 

Smilie  v.  BifHe 

621 

V.  McCrary 

500 

Smilie's  Estate 

633,  641 

V.  Metcalf 

312 

Smith,  Ex  parte 

412 

V.  Mitchell 

171 

In  re  Hay 

178 

V.  Moore 

386  a,  555,  815  a 

r.  Acton 

863 

V.  Oliver 

275,  724 

V.  Anders 

602  66 

V.  Patton 

77,  138 

V.  Atkins 

759 

V.  Phillips 

347 

V.  AttersoU 

86 

V.  Pincombe 

185 

V.  Atwood 

630 

V.  Porter 

559 

V.  Aykwell 

214 

V.  Provin 

199,  602/) 

V.  Babcock 

171 

V.  Ramsey 

127 

V.  Baker 

126 

V.  Rickards 

171 

V.  Bank  of  Scotland 

171 

178,  179 

V.  Sackett 

126,  133,  137 

V.  Barnes 

821 

V.  Smith        49, 

117,  118,  134,  213, 

V.  Bolden 

900,  926 

270, 

284,  305,  438,  453, 

V.  Bowen 

217,  828 

459, 

465,  591,  603,  818. 

V.  Brotherline 

202,  203 

890,  903  «,  924 

V.  Bruning 

214 

V.  Snow 

882 

V.  Burgess 

223 

V.  Speer 

82 

i;.  Burnham            79 

,127 

,  133,  137 

V.  Starr 

310  a,  652,  653 

INDEX   TO    CASES   CITED. 


CXXlll 


Section 

Smith  V.  Stowell 

739 

V.  Sutton 

260 

V.  Tliompson 

318 

V.  Tome 

82 

V.  Townshend 

195 

V.  Walter 

217 

V.  Wheeler 

270, 

273,  806 

V.  Wiklman 

117, 

118, 

411,511 

V.  Wilkinson 

82 

V.  Wright 

206 

V.  Wyckoff 

573 

V.  Young 

57 

V.  Zaner 

55 

Smith's  Settlement,  In  re  282 

Smitheal  v.  Gray  126 

Smyth  V.  Burns  459 

V.  Carlysle  243 

Smythe  v.  Smythe  540 

Snape  v.  Turton  51 1  c 

Sneesby  v.  Thome  770,  809 

Snelgrove  v.  Snelgrove  218 

Snell  V.  Elam  127 

Snelling  v.  McCreary  456 

V.  Utterback  137 

Snow  V.  Booth  863 

V.  Galium  918 

V.  Cutler  379 

V.  Teed  256 

Snowden  v.  Dunlavey  35 

Snowdon  v.  Dales  386,  555 

Snow  hill  V.  Snowhill         610,  611,  639, 

641 
Snyder  v.  Snyder  648,  652,  676 

;;.  Sponable  222 

Snyder's  Appeal  652,  670,  91  8  m 

Soames  v.  Martin  118 

Soar  V.  Foster  144 

Socher's  Appeal  171 

Society  v.  Pelham  468 

Soc,  &c.  V.  Hartland  299 

Soc.  for  Propagating  the  Gospel  v. 

Att'y-Gen.  701,  731,  736,  741 

Soc.  of  Orphan  Boys  v.  New  Or- 
leans 748 
Sockett  V.  Wray           52,  630,  633,  655 
Soggins  V.  Heard                         172,  863 
Sohier  v.  Eldredge           476  a,  551,  55G 
V.  Mass.  Gen.  Hosp,            610,  724 
V.  St.  Peter's  Church  748 
V.  Trinity  Church                121,  737 
V.  Williams  784 

Solinsky  v.  Lincoln  Sav'gs  Bk.  918 

Sollee  V.  Croft     836,  842,  864  914,  918 
Soller  V.  Ciiandler  428 

SoUiday  v.  Bissett  918 

V.  Graver  575 

Soraers  v.  Craig  647 

V.  Overhulser  126 

Somes  V.  Skinner  246  n 

V.  Stokes  200 

Sonley  v.  Clockmakers'  Co.  38,  45,  240 


Section 
Soohan  v.  Philadelphi  748 

Soresby  v.  Hollins  709 

Sothron,  In  re  93 

Sotone  V.  Scott  843 

South,  Ex  parte  •  68 

V.  AUeyne  310 

V.  Hay  426 

South   Scituate  Savings   Bank   v. 

Koss  766 

South  Sea  Co.  v.  Wymondsell  861,  862 
South  Yorkshire,   &c.   Kailway  v. 

Great  Northern  Railway  757 

Southampton  v.  Hertford  160,  393,  395 
Southard  v.  Plummer  676,  678 

Southcomb  v.  Exeter  869 

South  Eastern  Railw.  Co.  v.  Jortin  751 
Southouse  V.  Bate  152,  157 

Southwell  V.  Ward  277,  287 

Souverbye  v.  Arden  103,  104,  161 

Sowarsby  v.  Lacy  582,  610,  787,  793 
Sowerby  v.  Clayton  461 

Sowers  v.  Cyrenius  701 

Spalding  v.  Shalmer  416,  597,  789,  796 

Spangler's  Appeal  918 

Sparhawk  v.  Buell     418,  422,  426,  612, 

618,  624 


V.  Cloon 

V.  Sparhawk 
Spark's  Estate 
Sparks  v.  Hess 

V.  Kearney 
Sparling  v.  Parker 
Speakman  v.  Speakman 
Spear  v.  Grant 

V.  Spear 

V.  Tinkham 

V.  Tucker 

V.  Ward 
Speer  v.  Haddock 

Speidel  v.  Henrici 

Speight  V.  Gaunt 

Speiglemyer  v.  Crawfort 
Spence  ".  Duren 

V.  Spence 

V.  Whitaker 
Spencer  v.  Anon. 

V.  Ford 

V.  Hawkins 

V.  Smith 

V.  Spencer 
Sperling  v.  Rochfort 
Spessard  v.  Rohner 
Spicer  v.  Ayres 

V.  Dawson 
Spickernell  v.  Hotham 

Spindle  v.  Shreve 

Spindler  v.  Atkinson 
Spink  V.  Lewis 
Spinning  v.  Blackburn 
Spirrett  v.  Willows 
Spooner  v.  Whiston 


386,  555 

275 

262 

232 

602  p 

439,  551 
380 
242 

453,  612 

463,  468,  541,  547 

541 


680 

602^9 

863,  865 

404 

173 

171 

805,  358 

918 

602  s,  602  X 

602  e 

598 

420 

901 

630 

815 

164 

652 

859,  863 

815  a 

205,  428 

160 

681 

164,  635,  649 

212 


CXXIV 


INDEX   TO    CASES   CITED. 


Section 

Section 

Spotswood  V.  Pendleton                    610 

Stahlschmidt  v.  Lett 

4»1 

iSpottiswoode  v.  Stockdale         585,  59o 

Staines  v.  Morris 

786 

Spra<;tue  v.  Smith                                762 

Stainton  v.  Carson  Co. 

185 

V.  Sprague                                     358 

Stair  V.  Macgill 

550 

r.  Tvsoii                                660,  873 

Stall  V.  Cincinnati 

137 

V.  Woods                               162,  299 

Stallings  v.  Foreman 

195,  205 

Sprange  v.  Barnard                     113,  116 

Stamford  v.  Hobart 

359 

Sprigg  V.  Bank  of  Mount  Pleasant  226 

Stamp  V.  Cooke 

257 

V.  Sprigg                                       162 

Stamper  v.  Barker 

34 

Spring  I'.  Biles                                     256 

V.  Millar 

414 

V.  Pride                        195,  202,  670 

Standing  v.  Bowring 

99 

r.  South  Carolina  Ins.  Co.         585 

Stanes  v.  Parker 

902 

V.  Woodworth                              603 

Stanford  v.  Marshall 

657, 

662,  667 

Spring's  Appeal                                   460 

Stanhope  v.  Toppe 

187 

Springe  v.  Berry                                683 

Staniforth  r.  Staniforth 

578 

Springer  v.  Arundel                 310  a,  652 

Stanley  v.  Brannon 

143 

V.  Springer                            126,  865 

V.  Colt 

121,  737 

V.  Walters                                     232 

V.  Jackman 

369 

Springett  v.  Dashwood               821,  900 

V.  Leigh 

364.  377 

Spurgeon  v.  Collier                             828 

V.  Lennard 

305,  359 

Spurr  V.  Seoville                            71,  72 

V.  Stanley 

359,  578 

Spurrier  v.  Hancock                            122 

Stanley's  Appeal 

459,  851 

Spurway  v.  Glynn                               571 

Stansell  v.  Roberts 

238 

Squire  v.  Dean                                     665 

Stanton  v.  HaU    388,  626, 

647, 

648,  649 

V.  Harder                               139, 162 

r.  King 

526 

V.  Whitton                           178,  179 

V.  Kirsch 

677 

Squire's  Appeal     76,  135,  205,  206,  226 

Stanwood  v.  Stanwood 

639,  640 

Squires  v.  Ashford                              684 

Stapleton  v.  Langstatfe 

610 

St.  Albyn  v.  Harding                          188 

V.  Stapleton 

96, 

185,  373 

St.  Aubin  v.  St.  Aubin                       556 

Stark  V.  Canady 

126 

St.  George  v.  Wake                             213 

Starke  v.  Starke 

643,  863 

St.  James  Church  v.  Church  of  the 

Starkey  v.  Brooks 

151,  154 

Eedeemer                                       207 

Starkie,  Ex  parte 

617 

St.  John  V.  St.  John            214,  672,  673 

Starr  v.  ElUs 

347 

V.  Turner                                      869 

V.  Starr 

75,  76 

St.  Johnsbury  v.  Morrill            828 

V.  Wright 

33 

St.  John's  Church,  In  re                    725 

State  I".  Adams 

742 

St.  John's  College  v.  State                742 

V.  Bevers 

828 

St.  Louis  V.  Priest                      779 

1-.  Boston,  &c.  Railway  Co.        756 

St.   Louis    Union   Society   v. 

V.  Brown 

263 

Mitchell                                    828 

r.  Bryce 

30 

St.  Mary's  Church  v.  Stockton          797 

V.  Cincinnati 

766,  795 

St.  Patrick's  Church  v.  Daly     127 

r.  Commercial  Bank 

757 

St.  Paul  V.  Dudley                             347 

V.  Digges 

843 

Staats  V.  Bergen                                 195 

i;.  Fay 

847 

r.  Bingen                                       847 

V.  Gerard               699, 

731, 

738,  748 

Stacey  v.  Elph    261,  267,  268,  269,  270, 

r.  Griffith 

2 

76  a,  732 

271,  273 

V.  Guilford           404, 

415, 

417,  418 

Stackhouse  v.  Bamston    228,  229,  851, 

r.  Hearst 

262 

872 

V.  Hollingworth 

550 

Stackpole  v.  Arnold                           226 

V.  Holloway 

171 

t'.  Beaumont       512,513,514,515. 

V.  Howarth 

471 

635,  636 

V.  Kock 

348 

V.  Daveron                            867,  872 

V.  Krebs 

628 

V.  Howell                                       272 

r.  Lord 

413 

1-.  Stackpole         471,  472,  900,  912 

V.  Macalester 

774 

Stafford  v.  Buckley                             765 

V.  Mayor  of  Mobile 

44 

V.  Stafford                             851,  870 

V.  McGowen 

700,  748 

V.  Van  Renselaer                         232 

V.  Mexican  Gulf  Railway 

757,  759 

Stafford  Charities,  In  re                     733 

V.  Ketherton 

476  a,  815  a 

Stagg  V.  Beekman                              655 

V.  Nicols 

262 

INDEX    TO    CASES    CITED. 


cxxv 


Section 

State  V.  Northern  Railway  759 

r.  Paup  184 

V.  Piatt  916 

V.  Prewett  694,  748 

V.  Real  Estate  Bank  588 

V.  Reigart  632 

V.  Robertson  689 

V.  Roeper  452 

V.  Rusli  47 

V.  Simpson  456 
V.  Somerville,  &c.  Railway         750 

r.  Stebbiiis  44 

V.  Tolan  892 

State  Bank  v.  Campbell  289 

V.  Marsh  918 
State    of    Maryland    v.   Bank    of 

Maryland  31,  588 

States  V.  Rives  757 

Steacy  v.  Rice  653 

Stead  V.  Clay  668 

r.  CuUey  637 

V.  Nelson  654,  658 

Stearnes  r.  Hubbard  84,  85 

Stearns  v.  Brown  463 

V.  Mathews  676 

V.  Palmer        17,  302,  312,  820,  328 

Stebbins  v.  Eddy  174 

V.  Morris  126 

Steel  V.  Cobham  818 

V.  Steel  647,  648 

Steele  i'.  Kinkle  167,  228 

V.  Levisay  794 

V.  Steele's  Adm'r  559 

V.  Wallar  96 

V.  Worthington  165 

Steere  v.  Steere  20,  76,  79,  82,  88. 

120,  133,  189 

Stehman's  Appeal  918 

Steib  V.  Whitehead  815  a 

Steinberger  v.  Potter  304 

Steinman  v.  Ewing  680 

Steinmetz  v.  Haltkin  645 

Stell's  Appeal  415,  421 

Stent  V.  Baillis  122 

Stephen  v.  Swann  55 

Stephens  v.  Bateman  183,  187 

V.  Hotham  786 

V.  Jnmes  388,  555 

V.  Lawry  612,  615 

V.  Stephens  379 

V.  Trueman  111,  367 

V.  Venables  438 

V.  Yandle  918 

Stephenson  v.  Hayward  585 

V.  Heathcote  506 

V.  January  782 

V.  Stephenson  918 

V.  Taylor  171 

Stephenson's  Estate  918 

Sterling  y.  Sterling  672 

Sterrett's  Appeal  416,  418,  421 


Section 
Stevens  v.  Austen  840,  495,  770 
V.  Bagwell  29,  69 
I'.  Beals  640 
V.  Bell  585,  593 
V.  Buffalo  and  New  York  Rail- 
way 709 
V.  Dethick  578 
V.  Earles  602 
V.  Ely  160 
V.  Gaylord  266 
V.  Gregg  562,  568,  569,  570 
V.  Olive  672,  673 
V.  Savage  636 
V.  South  Devon  R.  Co.  478 
V.  Stevens  144,  438 
V.  Wilson  126 
Stevenson,  In  matter  of  602  m 
V.  Agry  585 
V.  Brown  627 

V.  Crapnell  79,  162 

V.  Maxwell  918 

V.  Phillips  918 

Stevenson's  Appeal  277 

Estate  918 

Steward's  Estate  547 

Stewart,  In  re  275 

V.  Ball  677 

('.  Brown  126,  132 

V.  Dailey  165 

V.  Hall  593 

V.  Hatton  234 

V.  Hubbard  192 

V.  Iglehart  165 

V.  Ives  232,  339 

V.  Jenkins  686 

V.  Kirkland  68,  438 

V.  MfMinn  910 

V.  Noble  600 

V.  Pettus  843,  414 

V.  Sanderson  467 

V.  Stewart  185,  668 

Stewart's  Appeal  643 

Stickland  v.  Aldridge      84,  90,  93,  216 

Stickney  r.  Sewell      297,  453,  457,  461 

Stiffle  r.  Everitt  626 

Stikeman  v.  Dawson  53 

Stile  V.  Griffin  232 

V.  Thompson  496 

Stileman  v.  Ashdown    54, 145, 146,  149 

Still  V.  Ruly  49 

V.  Spear  386  a 

Stilwell  V.  Wilkinson  187 

Stimpson  v.  Fries  602  /;,  602  aa 

Stine  ('.  Wilkson  602  p,  602  r,  782 

Stiner  v.  Stiner  172 

Stock  V.  Moyse  122 

V.  Vining  903  a 

Stockbridge  v.  Stockbridge       309,  766 

Stocken  v.  Dawson  904,  906 

V.  Stocken  612 

Stocker  v.  Whitlock  660,  685 


CXXVl 


INDEX   TO    CASES   CITED. 


Stockley  v.  Stockley 
Stocks  V.  Dobson 
Stockton  V.  Ford 
Stoddart  r.  Allen 
Stoker  v.  Yelby 
Stoke's  Appeal 
Stokes  Trusts,  In  re 
Stokes  ?•.  Cheek 

V.  Payne 
Stone  r.  Bishop 

V.  Denny 

V.  Framingham 

V.  Godfrey  185, 

V.  Grantham 

V.  Griffin 

V.  Hackett 

V.  Hinton 

V.  Keyes 

V.  Lidderdale 

V.  Stone 

V.  Theed 

V.  Welling 

Stone,  petitioner 

Stoner  v.  Commonwealth 
S  ton  or  V.  Cur  wen 
Stoolfoos  r.  Jenkins 
Storrs  V.  Barker 

V.  Benbow 
Storry  v.  Walsh  802, 

Story  V.  Gape 

V.  Winsor 
Story's  University  Gift 
Stouffer  V.  Holenian 
Stout  V.  Highbee 

r.  Levan 
Stover  r.  Flack 
Stow  V.  Kimball 
Stowe  V.  Bowen 
Strafford  v.  Powell 
Strange  r.  Fooks 

V.  Smith 
Strathmore  v.  Bowes 
Stratton  r.  Dialogue 

V.  Grimes 
Strauss  v.  Goldsmid 
Strauss's  Appeal 
Stretch  I'.  Watkins 

i\  Gowdry 
Stretton  v.  Ashraall 
Striker  v.  Mott 
Strimpfler  v.  Roberts  126, 
Stringer  v.  Harper 
Stringham  v.  Brown 
Strode  v.  Russell 
Strong  V.  Brewer 

V.  Carrier 

V.  Glasgow 

V.  Ingraham 

V.  Perkins 

V.  Skinner 

V.  Smith 


Section 

185 

438 

202 

593,  597 

330 

320 

286 

119 

268 

99 

172,  173 

735,  743 

433,  863,  867 

590 

240,  748 

98,  204,  338 

786  a 

602  bb 

69 

109,  110,  147 

533 

221 

920 

642 

361,  369,  371 

170,  849 

184 

385 

803,  805,  811 

200,  869 

219,  221 

735 

232 

594 

640 

134,  142 

127 

416 

360 

851 

517,  519 

213 

126,  127 

511,  514 

699,  702 

232 

615,  616 

918 

457 

305 

,  137, 141,  865 

918 

602  ee 

336 

546 

591 

76 

571 

93 

590,  591 

642 


Strong  V.  Willis 
Strother  v.  Law 
Stroud  V.  Burnett 

V.  Grozer 

V.  Gwyer 

V.  Norman 
Stroughill  i\  Anstey 
785,  795,  797, 

V.  Gulliver 
Stuart  V.  Bruere 

V.  Bute 

V.  Carson 

V.  Kirkwall 


Section 

268 

602  n 

562,  566 

671 

430,  551 

511  a 

597,  768,  783, 

800,  801,  810,  812 

208 

550 

603 

562 

657,  658,  662 


V.  Corp 

V.  Morse 
Sturt  V.  INIellish 
Sturtevant  v.  Jaques 


Stuyvesant,  In  re 

V.  Hall 
Styan,  In  re 
Styer  v.  Freas 
Styles  V.  Guy 


V.  Kissam      195,  428,  647,  648,  654 

V.  Stuart  539 

Stubbs  V.  Gargan  630 

V.  Roth  196 

r.  Sargon       112,  159,  253,  712,  715 

Stucky  V.  Stucky  132 

Studholme  v.  Hodgson  622,  903  a 

Stulz  Trusts,  In  re  388,  555 

Stump  V.  Gaby  199,  202,  227,  852 

Sturges  r.  Dimsdale  573 

V.  Knapp  280,  749 

Sturgis  V.  Champneys        626,  629,  632, 

633,  634 

655,  670 

863,  865,  872 

17 

157,  158, 159, 

814 

283 

241 

438 

783 

262,  419,  424,  440,  453, 

870 

Succession  of  Wilder  34 

Sugden  v.  Crossland  274,  427 

Sugg  V.  Tillman  591 

Suir  Island  Charity  School,  In  re     737 

Sullivan  v.  Sullivan 

Sumner  v.  Marcy 
Sumrall  v.  Chaffin 
Sunderland  v.  Sunderland 
Supple  !'.  Lavvson 
Susquehanna  Bridge  Co. 

eral  Ins.  Co. 
Susquehanna  Canal  Co.  v.  Bonham 

757 
Sussex  V.  Worth  528 

Sutcliffe  V.  Cole  152 

Sutherland  v.  Brush  421 

V.  Cook  449,  4C1,  551 

Sutphen  v.  Fowler 

Sutton  V.  Aiken 

Sutton  V.  Cradock 
V.  Hanford 
V.  Jewke 
V.  Jones 
V.  Myrick 


138 

72 

774 

141,  147 

256 

Gen- 

754 


780 
520 
541 
590 
615 
199,  432,  530 
917 


INDEX   TO    CASES   CITED. 


CXXVll 


Section 

Sutton  V.  Sharp  464,  4(38 

Sutton  Colefield's  Case  830 

Suydam  v.  Martin  217,  591 

Swaine  v.  Ferine  554 

Swale  V.  Swale  413,  818 

Swallow  V.  Binns  580 

Swan,  In  re  630 

V.  Frick  97 

V.  Ligan  220,  541 

Swarez  v.  Pumpelly  287 

Swarr's  Appeal  7:-i-'» 

S  warts  waiter's  Account  918 

Swartwout  v.  Burr  56 

Swartz  V.  Swartz  20(5 

Swasey  v.  Amer.  Bible  Soc.  699,  700, 

706,  748 

V.  Little  796 

Swearingin  i-.  Slicer  592 

Swedesborougli  Church  u.  Shivers   733 


Sweeney  v.  Sampson 

V.  Smith 
Sweet  v.  Jacocks 

V.  Southcote 
Sweetapple  v.  Bindon 
Sweeting  v.  Sweeting 
Sweezy  v.  Thayer 
Sweigart  v.  Berks 
Swift,  Ex  parte 


V.  Davis 

V.  Gregson 
Swinburne  v.  Swinburne 
Swindall  v.  Swindall 
Swinfen  v.  Swinfen 
Swink  ('.  Snodgrass 
Swinnock  v.  Crisp 
Swinton  v.  Egleston 
Swissholm's  Appeal 
Switzer  v.  Skiles 
Swoyer's  Appeal 

Syckle  v.  Kline 

Syester  v.  Brewer 
Sykes  v.  Hastings 

V.  Sheard 
Sykes's  Trust 
Sylvester  v.  Jarman 

V.  Wilson 
Symes  v.  Hughes 
Symm's  Case 
Symson  v.  Turner 
Synge  v.  Hales 
Synnot  v.  Simpson 
Sypher  v.  McIIcnry 
Syracuse  Sav'gs  Bank  v.  Porter  82 


694,  700,  748 

680 

206 

222 

323,  824,  366 

327 

611 

556,  783 

613,  618 

920 

147 

256 

137,  142 

471 

348,  443,  446 

225 

618 

160 

204,  209 

84,  401 

453,  590,  786  n 

126 

864 

432 

84 

658 

337 

305 

214 

724 

303,  305,  309 

357,  360,  377 

593 

197 


493,  778, 
657, 


T. 


Section 
Tabor  v.  Grover  13 

Taft  V.  Providence,  &c.  Railway       545 
Taggart  v.  Baldwin  640 

V.  Taggart  364 

Tainter  v.  Clark  259,  499,  500,  700,  748, 
765,  921 


Tait  V.  Jenkins 
V.  Lath  bury 
V.  Northwick 

Taite  v.  Swinslead 

Talbot  v.  Bowen 
V.  Calvert 
V.  Cook 
V.  Dennis 
V.  Mansfield 
V.  Marshfield 
V.  Radnor 
V.  Scott 
V.  Staniforth 

Taliaferro  r.  Minor 
V.  Taliaferro 

Talley  )•.  Starke 

Tally  V.  Thompson 

Tanaux  v.  Ball 

Taner  ik  Ivie 

Tankard  v.  Tankard 

Tann  v.  Tatm 

Tanner  r.  Dancey 
V.  Elworthy 
V.  Hicks 
V.  Skinner 

Tapley  i'.  Butterfield 

Tappan  v.  Deblois 


819 

766 

600 

498 

84 

652 

438 

640 

822,  823,  826 

474 

272,  476  a,  922,  928 

818 

188 

918 

126,  133,  135 

610 

676 

918 

800 

171,  215 

903  a 

892 

129,  196,  538 

232 

98 

814 

694,  705,  724,  730, 

748 


Tabb  V.  Archer 

V.  Baird 
Tabele  v.  Tabele 

VOL.  I.  — i 


34 

299,  303 

602 /T 


Tappenden  v.  Burgess 
Tarback  v.  Marbury 
Tardift"  v.  Robinson 
Targus  v.  Puget 
Tarleton  v.  Hornby 

V.  Vietes 
Tarpley  v.  Poaze 
Tarr  v.  Williams 
Tarsley's  Trust,  In  re 
Tarver  v.  Tarver 
Tasburgh's  Case 
Tasker  v.  Small 
Tassey's  Trust 
Tastor  v  Marriott 
Tatam  v.  Williams 
Tate  V.  Connor 

V.  Leithhead 

Tatge  V.  Tatge 

Tatham  r.  Drummond 

V.  "Vernon 
Tatlock  V.  Smith 
Tator  V.  Tator 
Tavenner  i\  Robinson 
Taylor,  Ex  parte 

In  re 

V.  Allen 

V.  Alloway 


587 
590 
535 
364 

848,  875 

84 

126 

055,  660 
648 
182 
630 

122,  874 
652 
196 
869 
863 
105 
226 

668,  709 

357,  350 
685 
380 
921 
587 

895,  904 

816,818 
232 


87, 


CXXVIU 

IND 

EX   TO    C 

Section 

ASES    CITED. 

Section 

Taylor  V.  Alston 

144,  147 

Tee  V.  Ferris 

511  a 

I'.  Asliton 

171 

Telford  v.  Barrey 

404,  779 

V.  Atkins 

602  ;7 

Teller  v.  Bishop 

678 

V.  Austen 

633 

Tempest,  In  re 

39,  55,  59,  277 

V.  Bacon 

117 

Temple  r.  Hawley 

34,  365 

V.  Benliam     64, 

131, 

336, 

415,  441, 

Templeton  v.  Brown 

122 

602  111, 

765,  855 

Tenant  v.  Brown 

121 

V.  Biddal 

379 

Tendrill  v.  Smith 

201 

V.  Blakelock 

828 

Teneick  v.  Simpson 

38,  231 

V.  Boardman 

215 

Tennant  v.  Stoney 

593.  6i9 

V.  Bond 

547 

Tennent  r.  Tennent 

390 

V.  Clark 

550,  551 

Tenny  r.  Jones 

355 

V.  Crompton 

871 

r.  Simpson 

133 

V.  Dickinson 

413 

Terhune  v.  Colton 

576 

V.  Galloway 

769 

Terre  c.  Am.  Board 

499,  510 

V.  George 

112 

Terrell  i:  Matthews 

416,  423 

V.  Glanville      280,  476  «, 

667,  894, 

Terrett  v.  Crombie 

218,  222 

901 

922,  928 

V.  Taylor 

743 

V.  Goodie 

805 

Terry  v.  Brunson 

633,  039 

V.  Harwell 

815  a 

V.  Collier 

298 

V.  Hawkins 

811 

V.  Hopkins 

213 

V.  Haygarth 

157, 

327 

434,  437 

r.  Laible 

708 

V.  Henry 

99 

V.  Terry  453, 476,  605,  610,  621,  915 

V.  Hibbert 

550,  551 

Tessier  v.  Wvse 

562 

V.  Hopkins 

402 

Tliacker  v.  Kay 

254 

V.  Huber 

920 

Thackery  v.  Sampson 

380 

V.  Hunter 

232, 

237,  239 

Thallheimer  )•.  Brinckerhoff 

68 

V.  James 

ion,  143 

Thatcher  v.  (^andee 

274,  921 

V.  Keep 

83,  732 

1-.  Churchill 

i-6 

V.  King            17 

328 

602 

(■,  002  an 

V.  Corder 

208 

V.  Lucas 

160 

V.  Oniiiiis 

298, 

299,  302 

V.  Luther 

226 

Thayer  r.  Gould 

849 

V.  McKinney 

232 

1-.  Wellington 

88,  90,  93,  272 

V.  Meads 

656 

V.  Thayer 

6116 

V.  Millington 

267 

The  Skinners'  Case 

093 

V.  Mitchell 

715 

Theebridge  r.  Kill)urn 

363 

V.  Morris 

499 

Thelluson  v.  Woodford 

379, 

394,  737 

V.  Phillips 

605 

Theological  Education  Soc.  v. 

V.  Plumer 

345, 

835 

837,  842 

Attornev  (ieneral 

739 

V.  Pownal 

82,  95,  1-22 

Thetford  School 

693,  725 

V.  Pugh 

213 

Thicknesse  v.  Vernon 

136 

V.  Radd 

226 

Thiebaud  v.  Dufour 

261a 

V.  Roberts 

415 

Third  Nat.  Bank  v 

Still  V 

'ater 

V.  Root 

892 

Gas  Co. 

828 

V.  Salmon 

206,  885 

Thomas  v.  Bennett 

665 

V.  Shelton 

678 

V.  Brinsfield 

863 

V.  Shum 

536 

V.  Bowman 

433 

V.  Stibbert 

217,  828 

V.  Chicago 

143,  144 

V.  Tabrum 

781 

848 

876,  901 

V.  Dunning 

873 

V.  Taylor        54 

109, 

139, 

146,  147, 

i\  Ellmaker 

704, 

706,  710 

162 

194 

201 

654,  667 

V.  Fohvell 

661 

V.  Weld 

226 

V.  Higham 

282 

Taylor's  Case 

697 

i".  Hole 

257 

Tayman  v.  Mitchell 

171 

V.  Jenks 

586 

591,  592 

Teague  v.  Dendy 

618 

V.  Kelsoe 

641 

Teakle  v.  Bailey 

206 

V.  Kennedy 

239, 

627,  632 

Teas's  Appeal 

573 

V.  McCann 

171,  172 

Tebbetts  r.  Tilton 

126,  133 

V.  McCormack 

162 

Tebbitt  V.  Tebbitt 

364 

V.  Merry 

7 

5,  86,  863 

Tebbs  V.  Carpenter 

438, 

440, 

444.  464, 

V.  Oakley 

871 

405,  468 

471 

527 

900,  902 

V.  Scruggs 

404,  420 

Section 

Tliomas  v.  Sheppard  189,  627,  628 

V   Standifurd  1-J7 

V.  Stone  221 
V.  Thomas            858  863,  871,  872 

I'.  Townsend  774 

V.  Walker  126 

V  Williams  213 
Thomassen  v.  Van  Wyngaar- 

den  437  h 

Tomlinson  v.  Dighton  511  6 

Thompson  v.  Beaseley  6-54 

V.  Blackstone  770,  787 

V  Blair  229,  230,  863 
V.  Branch  134 
V.  Brown  465 
V.  Corby  699 
V.  Ellsworth  639 
V.  Finch  402,  418,  850 

V  Fisher  359 
V.  Ford  330 
V.  Gaillord  765 
I'.  Galloupe  518 
V.  Garwood  511  c 
V.  Gibson  299 
I'.  Grant  337 

V  Griffin  612 
V.  Harrison  851 
V.  Houze  602  77 
V.  Judge  2i3'2 
V.  Leach  259,  270 
V.  Lediard  7-JO 
V.  McDonald  918 
V.  McGaw  869 
V.  McKissick  113,  253 
V.  Meek  270 
V.  Murray  48 
V.  Norris  251 
V.  Parker  128 
V-  Quimly  93 
V.  Shakespear  710 
r.  Simpson  3G1,  833,  860,  867 
V.  Spiers  438 
V.  Thompson  75,  109, 134, 143, 146, 

\m,  275,  324,  526,  699,  700,  712 

V.  Wheatley  195 

Thompson's  Appeal  127,  128 

Tliong  V.  Bedford  317 

Thorhy  v.  Yates  654,  667,  889,  900,  901 

Thorn  v.  Newman  347 

Thornber  v.  Wilson  701 

Thornborough  <•.  Baker  226 

Thorndike  v.  Hunt  828 

V.  Loring  393,  737 

Thorner  v.  Tliorner  134 

Thornhill  v.  Gilmer  602  i 

Thornton  v.  Buy  den  782 

V.  Ellis  450,  451 

V  Henry  84 
V.  11  (I  we  "'  700 
r.  Irwin  602  " 
V.  Jarvin                  .  199 


iSES    CITED. 

CXXIX 

Section 

Thornton  v.  Knox 

235 

237.  239 

v.   Ugden 

915  a 

V.  Stokili 

842 

V.  Wilson 

703 

V.  Winston 

270 

Thorp,  In  re        429,  462, 

463. 

464,  468 

V.  Fleming 

737 

V.  Jackson 

878 

V.  McCallum 

195, 

198,  430 

V.  Owen 

117 

Thorpe  v.  Owen              86,  96 

118,  119 

Thrupp  V.  CoUett 

715 

V.  Harmon 

665 

Thruxton  v.  Att'y-Gen. 

75,  509  h 

Thurston  v.  Dickinson 

552 

r.  Essington 

620 

i;.  Prentiss 

602./;  602  p 

V.  Thurston 

552,  610 

Thvnn  v.  Thvnn 

181 

182,  226 

Tibbits  V.  Tibbits       112, 

113, 

116,  123 

Tidd  V.  Lister     329,  526. 

540, 

626,  634, 
818 

Tiernan  v.  Bean 

232,  238 

V.  Poor 

97 

V.  Rescaniere 

855 

V.  Roland 

231 

V.  Thurman 

237,  239 

Tierney  v.  Moody 

305 

V.  Wood 

83,  105 

Tiffany  v.  Clark 

197,  205 

Tiffin  V   Longman 

258 

Tilbury  v.  Barbut 

380 

T  Iford  V.  Torrey 

127 

Tilley  v.  Bridges 

871 

Tillinghast  v.  Bradford 

i. 

86  a,  555 

V.  Champlin 

814 

V.  Coggeshall     324,  c 

61,  476  a,  928 

Tilton  V.  Hunter 

241 

V.  Tilton 

84,  186 

Timbers  v.  Katz 

639 

Tinison  v.  Ramsbottom 

438 

Tindall  *•.  Harkinson 

175 

Tinnen  v.  McCane 

86.-5 

Tinsley  v.  Tinslej' 

126 

Tippetts  i:  Walker 

757 

Tipping  V.  Power 

892 

Tipton  V.  Powell 

151,  165 

Titchenell  v  Jackson 

82 

Titcomh  V.  Currier 

786  a 

V.  Morrill 

81,  162 

Titley  v.  Durant 

672 

V.  Wolstenliolme 

294, 

339,  340, 
494,  495 

Toby  V.  McAllister 

232, 237 

Todd  V.  Buck  man 

592,  602 

?'.  I-ee 

660 

V.  Moore 

205 

V.  Munson 

79 

r.  Todd 

562 

V.  Wilson 

901,  904 

Toder  v.  Sansom 

395 

cxxx 


INDEX  TO    CASES   CITED, 


Section 

Toker  v.  Toker 

98,  104 

Tolar  V.  Tolar                98 

104, 

109,  161 

ToUcniaclie  r.  Coventry 

373 

Toller  V.  Carteret 

71 

Tolles  V.  Wood 

815  a 

Toman  r.  Uunlop 

523 

Tombs  V.  Kock 

573 

Tonikyns  v.  Ladbroke 

635 

Tomlin  v.  Hatfield 

413 

Tomlinsun  i\  Dighton 

657 

V.  Steers 

347 

Tompkins  v.  Mitchell 

136, 

238,  387 

V.  Powell 

218 

V.  Tompkins 

5G9 

V.  Wheeler 

585,  5D3 

v.  Willan 

315 

Tompkyn  v.  Sandys 

248 

Tongue  v.  Nut  well 

380 

Topham  v.  Duke  of  Portland 

511, 

511  a 

Toppan  ?-•.  Picomio 

816 

TorLett  v.  Twininor 

649 

Torrey  i-.  Bank  ot  Orleans 

129,  206 

V.  Buck 

171,  180 

V.  Deavitt 

243 

Totham  r.  Vernon 

100 

Tottenham,  hi  re 

196 

Tourney  v   Sinclair 

673 

Tourville  v.  Naish 

221 

Tower  v.  Bank  of  River 

Raisin       588 

Towers  v.  Hagner 

664,  665 

V.  Moore 

226 

Towle  V.  Ewing 

511c 

V.  Mack 

910 

V.  Swasey 

899 

Towne  v.  Ammidown 

262, 

417,  420, 
426 

Townend  v.  Tnwnend 

429 

430,  4(54 

Townley  v.  Bidwell 

704 

V.  Bond 

267 

V.  Sherborne        334, 

412, 

415,  416, 
417,  419 

Townsend,  Ex  parte 

402,  405 

V.  Barber 

422 

V.  Cams 

701 

V.  Early 

388 

V.  Fenton 

226 

V.  Townsend 

472 

V.  Wilson              344 

,414 

492,  505 

V.  Windham 

68,  665 

Townshend  v  Brooke 

891,  894 

V.  Champenown 

349 

V.  Stangroora 

176 

185, 226 

V.  Townshend  855,  861,  863,  865 

V.  Westacott  149 

Townson  i-.  Tickell  259,  270,  273 

Tracy  v.  Gravois  Rd.  Co.  910 

Tracy  v.  Keith  680 

V.  Sackett  189 

V.  Strong  556 

V.  Tracy  570 


Section 

Trafford  v.  Boehm      380,  455,  460,  462 

848,  877 

V.  Trafford  373 

V.  Wilkinson  229 

Tramp's  Case  486 

Trans.  University  v.  Clay  466 

Trapnal  v.  Brown  85 

Trask  v.  Donaghue  259,  262 

Travail  v.  Dan  vers  2<5 

Travers  v.  Townshend  901 

Travinger  v.  McBurney  214 

Travis  v.  Illingworth  290,  291 

Treadwell  r.  C^ordis  499 

V.  Salisbury  Mills  757 

Treat  v.  Peck  768 

Treat's  App.  38,  720,  724,  748 

Treats  r.  Stanton  333 

Tregonwell  v.  Svdenham  151,  152, 

"  160,  380,  385,  390,  396 
Trembles  v.  Harrison  55 

Tremper  r.  Burton  143,  147 

Trench  i-.  Harrison     126,  127,  138,  8i2 

Trenliolme,  ^zpaj-^e  126 

Trent  v.  Hanning  312 

V.  Harding  309 

V.  Trent  569 

Trenton  Banking  Co.  v.  Woodruff  647 
Trephagen  v.  Burt  127 

Trevanion  v.  Morse  219 

V.  Vivian  622 

Trevele  v.  Coke  536 

Trevelyan  v.  Charter  204,  229,  230 
Treves  v.  Townshend  464,  468 

Trevor  v.  Trevor  347,  361,  36  »,  371, 
390,  828,  834 
Trexler  v.  Miller  182 

Trezavant  v.  Howard  64 

Tribble  v.  Oldham  235 

Trickey  i-.  Trickev  397 

Trimlestown  v.  Colt  584 

V.  Hammil  468 

Trimmer  v.  Bayne  150 

Trimmer  Church  v.  Watson  559 

Trinity  College  v.  Brown  326 

Triplett  v.  Ja^nson  918 

Tripp  V.  Frazier  160,  575 

Tritt  V.  Col  well  640 

V.  Crotzer  75,  77,  83 

Trollop  V.  Linton  34,  511  c 

Trot  V.  Vernon  112,  569,  570 

V.  Dawson  907 

Trotter  v.  Blocker  60,  65 

V.  Erwin  ,    232,  234 

Trower  v.  Knightley  498 

Troy  V.  Haskell  45 

f.  Trov  610 

Troy,  &c.  Railwav  v.  Kerr  757 

Troy  City  Bank  v.  Wilcox  246  a 

Truebody  v.  Jacobson  232,  237 

Truell  V.  Tysson  783 

Truesdell  v.  Calloway  217 


INDEX   TO   CASES   CITED. 


CXXXl 


Section 

Trull  V.  Bigelow  218,  222 

V.  Eastman  188 

V.  Trull  814 

Truluck  V.  Peoples  222 

Trust  Co.  V.  Railroad  918 

Trustees,  etc.  v.  Atlanta        437  a 

Trustees,  &c.,y.  Chambers  748 

V.  Clay  466 

V.  Prentiss  602  n 

Trustees  v.  Wright  232 

Trustees  of  Phillips  Academy  v. 

King  42 

Trustees  of  Smith's  Char.  v.  North- 
ampton 508,  724 
Trustees  of  Theol.  Sem.  v.  I'ellogg  748 


Trutch  I'.  Lamprell 
Tryon,  In  re 

V.  Sutton 
Tucker  r.  Andrews 

V.  B  )swell 

V.  Burrow 

V.  Gordon 

V.  Guest 

V.  Horneman 

V.  Johnson 

V.  Kayess 

V.  Moreland 

V.  Phipps 

V.  Seamen's  Aid  Soc. 

V.  State 

V.  Tucker 

V.  Zimmerman 
Tudor  V.  Samyne 
Tuffnell  V.  Page 
Tullett  V.  Armstrong 


V.  Tullett 
Tullock  V.  Hartley 
Tunnard  v.  Littell 
Tunno,  Ex  parte 
Tunstall  v.  Boothby 

V.  Trappes 
Tupper  V.  Fuller 
Tupple  V.  Viers 
Turnage  v.  Green 
Turnbuil  v.  Gadsden 
Turner,  Ex  parte 

In  re 

V.  Buck 

V.  Corney 

V.  Davis 

V.  Frampton 

V.  Harvey 

V.  Hill 

V.  Hoole 
V.  Hoyle 

V.  Jaycox 

V.  Johnson 

1'.  King 


402 
270,  901 
640 
213,  627 
650,  551 
144,  147 
641 
680 
476  a,  928 
309 
152 
33 
183 
46,  93, 
730,  748 
261  a,  4.54 
330,  863 
815  6 
653 
739 
646,  648,  652, 
653,  657,  658,  670,  671 
605,  611 
71 
133 
275,  282,  297 
69 
222 
654 
232 
918 
171,  174 
240,  795,  802 
309 
346 
402,  821,  912 
633 
476  a,  928 
177,  180,  770 
196 
212 
794 
585 
602  g,  602  «,  602  y, 
602  lb 
171 


Turner  v.  Maule 

V.  Newport 

V.  Ogden 

V.  Pettigrew 

V.  Russell 

V.  Sargent 

V.  Smith 

V.  Turner  184, 

V.  Wardle 
Turner's  Case 
Turney  v.  Williams 
Turnley  v.  Kelley 
Turpin  v.  Sanson 
Turquand  v.  Marshall 
Turvin  v.  Newcome 
Tuthill  V.  Tracy 

Tutt  V.  R.  R.  Co. 

Tuttle  V.  Fowler 
V.  Gilmore 

V.  Robinson 
Twaddell's  Appeal 
Tweddell  v.  Tweddell 
Tweedy  v.  Urquhart 
Twisden  v.  Wise 
Twisleton  v   Thelwell 
Twitcliell  V.  Drury 
Twopenny  v.  Peyton 
Twynne's  Case 
Twypont  r.  Warcup 
Tyford  v.  Thurston 
Tylden  v.  Hyde  499, 

Tyiee  v.  Tylee 
Tyler  v.  Black 

V.  Deblois 

V.  Lake 
V.  Tyler 

V.  Webb 
Tyree  v.  Williams 
Tyrrell  v.  Hope 
V.  Marsh 
V.  Morris 
Tyrrell's  Case 
Tyrson  v.  Mattair 
Tyrwhitt  v.  Tyrwhitt 
Tyson  v.  Blake 
V.  Jackson 
V.  Latrobe 
V.  Mickle 
V.  Passmore 
Tyte  V.  Willis 


Section 
279,  292,  927 
556  a 
701 
127,  836 
160 
360,  369,  375 
864 
456,616,  619 
260 
633,  653 
468 
647 
456 
467 
393 
602 />6 
437  a 
641 
452 
918 
458,  459,  t)14 
201,614 
277,  296 
639,  640 
747,  892 
247  a 
119,  555 
590 
174 
926 
501,  787,  803 
818 
171,  173,  184 
263 
348,  648,  649 
82,  86,  212 
222 
780 
310,  648 
784 
225,  809 
161,  301 
670 
347,  348 
546 
574 
768 
780,  784 
38,  281 
380 


u. 

Udal  V.  Udal 
Udell  V.  Kenny 
Utirich  V.  Beek 
Ulman  v.  Barnard 
Underbill  v.  Horwood 

V.  Morgan 
Underwood  v.  Hatton 


511  r 

628,  630,  045 

221 

243 

186,  187,  192 

843 

846,  924 


cxxxu 


INDEX   TO    CASES   CITED. 


Section 

Underwood  v.  Stevens      417,  41U,  42;J, 

424,  444,  466,  467,  849 

TJniacke,  In  re  2-39 

V.  Giles  10:J 

Union  Bank  v.  Baker  130 

V.  Jacobs  754,  757 

Union  Bank  of  Tennessee  v.  EUicott  588 

Union  College  v.  Wheeler  126,  132 

Union   Mut.  Life  Ins.  Co.  v. 

Spaids  828 

Unitarian  Society  v.  Woodbury  79,  82, 

138 
United  States  v.  Vaughn 
United  States  Ins.  Co.  v.  Schriver 
Univ.  Soc.  V.  Fitch 

University  v.  Bank 

University  v.  Fay 
University  College,  In  re 
University  College  of  London   v. 
Yarrow  704, 

Upilegraph  v.  Commonwealth 


4-38 
222 
724 
863,  865 
743 
743 


697 


Upliain  V.  Varney 

297 

299 

312 

r.  Wynian 

859 

Uppington  v.  Buller 

202 

Upshaw  V.  Hargrove 

220 

232 

239 

Upson  V.  Badeau 

407 

Urann  v.  Coates 

82 

103 

Urch  V.  Walker  261, 

264, 

271, 

401, 

503. 
927 

Urkett  V.  Coryell 

60 

Urniry's  Ex'rs  v.  Wooden 

694, 

699, 

724 

748 

Utica  Ins.  Co.  ;•.  Lynch 

471 

Utterson  v.  Maire 

225 

Uvedale  i\  Patrick 

276 

V.  Uvedale 

'<47 

892 

Uzzell  V.  Mack 

232 

Uzzle  V.  Wood 

104 

V. 


451 


"Vacliell  r.  Koberts 

Vail  V.  Knapp  72 

V.  Vail  305 

Valentine  i-.  Valentine  918 
Vallance  r.  Miners'  Life  Ins.  Co.      589 

Valle  V.  Bryan  127 

Vallette  v.  Bennett  820 

r.  Tedens  206 

Valliant  v.  Diodmede  536 

Van  Amringe  r.  Peabody  248 
Van  Berghen  v.  Demarest             602  ee 

Van  Blarc'om  v.  Datrer  5-50 

Van  Bokkelen  r.  Tinges  794 

Van  Buskirk  r.  Ins.  Co.  438 

Van  Cott  V.  Prentice  82,  104 

Vance  >•.  E.  Lancaster  R.  Co.  478 

v.  Kirk  828 

V.  McLaughlin  642 

V.  Vance  929 


Section 
Vandebende  v.  Livingston  872,  877 
Vandenberg  v.  Palmer  96,  165 

Vanderbilt,  In  re  511 

Vanderheyden  v.  Crandall  305, 307, 523 
V.  Mallory  660 

V.  Vanderhevden  468,  918 

Vanderplank  v.  King         376,  385,  390 
Vanderstegen  v.  Withani  17 

Vander  Volgen  v.  Yates    162,  705,  710 
Vandervoot,  In  re  783 

Vandever  v.  Freeman  187 

Vandever's  Appeal     273,  411,  412,  415 
Van  Doren  v.  Olden  545 

r.  Todd  232 

Van  Duyne  v.  Van  Duvne  115 

Van  Duzer  v.  Van  Duze'r  603,  627,  628, 

681 

Vane  v.  Dungannnn  511  a 

Van  Epps  i-.  Van  Deusen         627,  628, 

629,631,632,641 

V.  Van  Epps   120.  195, 1:05.  206, 430 

Van  Horn  v.  Fonda    205,  262,  264,  401, 

538 
Vanhorn  v.  Harrison  312 

Van  Home  ;•.  Everson  680 

Van    Ilouten  v.   First    Reformed 

Dutch  Church  742 

Van  Kirk  r.  Skillman  680 

Vann  v.  Barnett  816 

Vanness  i'.  Jacol)S  928 

^'ann()y  r.  Martin  171 

Van  Rensalatr  v.  Stafford  ^^38 

Van  Rensselaer  v.  Dunkin  652 

Van  Saudan  v.  Moore  886 

Van  Sittart  v.  Van  Sirtart  654 

Van  Veciiten  v  Van  Vechten  380,391, 
619,  620 
Van  Vronker  r  Eastman  554 

Van  Weckle  r.  Malta  205 

Van  Winkle  '•   Van  Houten      569,  570 
Van  Wyck,  In  re  282,  411,  499 

Varick  v.  Briggs  218 

V.  Edwards  68,  188,  863 

Varner  i\  Gunn  858 

Varney  v.  Stevens  554 

Varnum  v.  Meserve   199,  602  m,  602.^' 

Varrell  v.  Wendell  254 

Vartie  r.  Underwood  680 

Vattier  v.  Hinde  218,  219,  221 

Vaughan  r.  Barclay  71 

V.  Buck  451,  547,  634,  636 

V.  Burslem  873 

V.  Evans  593 

V.  Thurston  900 

V.  Vanderslegen  170,  658,  848,  849 

V.  Walker  663 

Vaux  V.  Parke  305,  555 

Veasey  v.  Doton  173 

Veasie  v.  Williams  228 

Veazie  '■.  Forsaiih  477 

Venables  v.  Coffman  725,  748 


INDEX    TO    CASES    CITED. 


CXXXlll 


Section 

Section 

Venables  v.  East  Ind.  Co. 

262 

Wade  V.  Amer.  Colonization  Soc.     748 

V.  Foyle 

243,  402 

V.  Dick 

927 

V.  Morris 

319 

V.  Fislier 

647,  648 

Verner's  Estate 

891 

V.  Greenwood 

239 

Verney  v.  Carding 

828,  837 

V.  Harper        199,  209,  602  v,  602  x 

V.  Verney 

532,  578 

V.  Paget 

13,  347 

Vernon,  Ex  parte 

126 

V.  Pettibone 

135 

V  Blackerly 

874 

V.  Pope 

912 

V.  Board,  &c. 

831 

Wadham  v.  Society,  &c. 

660 

V.  Keys 

173 

Wadsworth,  In  re 

275,411 

V.  Morton              585, 

591, 

593,  602 

V.  Schisselbauer 

.815  6 

V.  Vawdry 

260,  844 

V.  Wendell 

95 

V.  Vernon              111, 

112, 

367,611 

Wagenseller  v.  Prettyman       915 

Vernon's  Case 

94 

Wager  v.  Wager 

121 

Verplanck  v.  Insurance  Co. 

207 

Wagner  v.  Baird 

228 

Verplank  v.  Caines 

137 

Wagstaffe  v.  Lowerre 

918 

Verulam  v.  Bathurst 

369 

V.  Read 

219,  220 

Vesey  v.  Jamson 

159, 

711,  712 

r.  Smith                306, 

648,  655,  670 

Vestal  V.  Sloan 

171 

V.  WagstafE 

93,  301 

Vestry,  &c.  v.  Barksdale 

918 

Wailes  v.  Cooper 

218 

Vetterlein  v.  Barnes 

873 

Wain  V.  Egmont 

600 

Vez  «.  Emery 

465,  901 

Wainwright  v.  Elwell 

13 

Vick  y.  McDaniel 

160 

V.  Waterman 

249,  508,  510 

Vickers  v.  Cowell 

136 

Wait  V.  Day 

143 

V.  Scott 

550, 

551,  771 

r.  Maxwell 

35 

Vidal  V.  Girard          42,  43,  45 

,  46,  240, 

Waite  V.  Whorwood 

835,  837 

694, 

700, 

724,  748 

Wake  V.  Tinkler 

330,  520 

V.  Philadelphia 

694 

Wakeman  v.  Grover     590,  592, 594,  (iOO 

Vigor  V.  Harwood 

550 

V.  Rutland 

787,  874 

Vigrass  v.  Binfield      453, 

825, 

826,  827 

Walburn  v.  Ingilby 

879 

Villard  v.  Chovin 

618 

Walcott  V.  Cady 

541 

Villers  v.  Beaumont 

104,  108 

Walden  v.  Karr 

86,  863 

Villiers  v.  Villicrs 

315,  319 

Waldo  V.  Caley 

699,  705 

Villines  v.  Norfleet 

850 

V.  Cummings 

541 

Vincent  v.  Beshopre 

511  /) 

V.  Waldo 

540,  776 

V.  Ennys 

784 

Waldron  v.  Ciiastney 

602  /),  602  oa 

V.  Godson 

260 

V.  McComb 

768,  786  n 

V.  Nevvcombe 

451 

V.  Sloper 

438 

Viney  v.  Abbott 

104 

Wales  V.  Newbould 

679 

Vinton's  Appeal 

545 

Waley's  Trusts,  In  re 

388 

Vizoneau  v.  Peagram 

655,  656 

Walford  V.  Gray 

208 

Volans  V.  Carr 

623 

V.  Liddel 

862 

Volgen  V.  Yates 

730 

Walker,  In  re 

633,  636,  904 

V(in  Hurler  v.  Spergeman 

433 

V.  Beal 

920 

Voorhees  v.  Church 

206 

V.  Brungard         134, 

135,  ly9,  288, 

V.  Stootliorp 

918 

292,  598,  602  p,  602  u 

Vose  V.  Grant 

242 

V.  Brungbad 

602  q 

Voyle  V.  Huglies           68, 

101, 

102,  438 

i\  Burngood 

126 

Vreeland  v.  Van  Horn 

849 

r.  Bynam 

468 

V.  Williams 

171 

1\  Crews 

96 

Vyse  V.  Foster 

469 

V.  Crowder 

602  h,  612 

Vyvy an  v.  Vyvyan 

851 

V.  Dean 
V.  Drury 
V.  Dunlop 

327 
636 
171 

w. 

V.  Elledge 

V.  Fawcett 

836 
328 

Wackerbath,  Ex  parte 

416 

V.  Locke 

84,  162 

V.  Powell 

404 

V.  Maunde 

267,  509 

Waddingliam  v.  Loker 

82 

V.  Mower 

383 

Waddington  v.  Banks 

38,  231 

V.  Ogden 

72 

Waddy  v.  Hawkins 

918 

V.  Page 

456 

CXXXIV 


INDEX   TO    CASES   CITED. 


Walker  v.  Perkins 
V.  Preswick 
V.  liiclianlson 
V.  Sedgwick 
V.  Sharp 
V.  Sliore 
V.  Sniailwood 


Section 

214 

239,  876 

23,  384 

232,  237 

920 

500,  613,  771 

474,  704,  770,  789, 

795 

V.  Smyser's  Ex'rs  511 

V.  Syniomls  402,  412,  418,  419, 

421,440,  453,4(57,821,  830, 

847,  848,  851,  875,  923 

V.  Taylor  814 

V.  Walker      226,  229, 230,  507.  508, 

510, 666, 672,  694, 748, 863,  918 

V.  Wetherell  618 

V.  Whiting  121 

V.  Williams  238 

V.  Woodward  471 

V.  297,  453,  461 

918 

38,  122,  231,  337,  342 

202 


Walker's  Estate 
Wall  V.  Bright 

V.  Cockerell 

V.  Stubbs 

V.  Tomlinson 

V.  Town 
Wallace  v.  Anderson 

V.  Auld 
V.  Berdell 

V.  Bowens 

V.  Coster 

V.  Duffield 

V.  Marshall 

V.  McCuUough 

V.  Taliaferro 

V.  Wainwright 

V.  Wallace 
Waller  i\  Armistead 

V.  Barrett 
V.  Catlett 

V.  Childs 

V.  Harris 

r.  Teal 

Walley  v.  Whalley 
Wallgrave  v.  Tebbs 

Wallingford  v.  Heard 
Wallington  v.  Taylor 
Wallington's  Estate 
Wallis  V.  Freestone 

V.  Loubat 

V.  Thornton 

V.  Wallis 
Walmesley  v.  Booth 
Walraven  v.  Lock 
Walrond  ?'.  Walrond 
Walsh  V.  Dillon 

V.  Gladstone 

V.  Stille 

V.  Wallinger 


176 

639,  040 

199 

386 /> 

627,  645 

104 

144 

652,  661 

75,  126,  127,  128 

133 

127,  128 

039 

13 

201 

213,  851 

846,  924 

452 

701,  702,  714 

002, //' 

770 

196,  828,  878 

77,83,93,  181, 

216,  611  a 

850 

576 

205 

506 

202 

416,  420,  602  rj 

299 

188,  202,  203 

75 

107,  471 

888 

273,  291,  731 

242 

248,  250,  258,  507, 

611  b 


Section 

Walsh  V.  Walsh 

618,  623 

V.  Wason 

646 

Walter  v.  Klock 

215 

V.  Logan 

501 

V.  Saunders 

633 

V.  Walter 

305 

Waltham's  Case 

169,  181 

Walton  V.  Avery 

918 

V.  Walton                94, 

150,  151,  152 

Walworth  v.  Holt 

885 

Walwyn  v.  Coutts 

367,  585,  593 

V.  Lee 

218,  219 

Wamble  v.  Battle 

232 

Wamburzee  r.  Kennedy 

863 

Wankfbrd  v.  Wankford 

264 

Warburton  v.  Earn 

784 

V.  Sandys 

414,  505 

V.  Warburton 

510,  581 

Ward  V.  Amory 

312,  627 

V.  Arch 

868 

V.  Armstrong 

137 

V.  Arredondo 

71 

rj.  Audland 

101 

V.  Bakkelen 

229 

V.  Barrows 

783,  786 

V.  Brown 

202 

V.  Butler 

262,  264 

V.  Davidson 

128 

V.  Devon 

601 

V.  Dorch 

277 

V.  iiarvey 

863 

V.  Hipwell 

413,  733 

V.  Kitchen 

466 

V.  Lant 

161 

V.  Lenthal 

5116 

V.  Lewis 

593,  594 

V.  Matthews 

133 

V.  Morgan 

250 

V.  Morrison 

438 

V.  Screw  Co. 

610 

V.  Smith 

205,  456 

v.  Spivey 

133 

V.  Trotter 

590 

V.  Ward 

121,  476,  809 

V.  Webber 

183 

V.  Yates 

903  a 

Ward's  Settlement 

455 

Warden  v.  Richards 

499 

Wardlaw  r.  Gray 

627,  628,  639 

Wardle  v.  Claxton 

648,  649 

I'.  Hargreaves 

282 

Wardour  v.  Beresford 

183 

Ward  well  v.  McDowell 

270,  499 

Ware  ;;.  Cann 

386 

V.  Horwood 

187 

V.  Mallard 

112.  117 

r.  MeCandlish 

641,  545 

V.  Polhill 

605 

V.  Richardson 

310,  312 

V.  Sharp 

660 

i;.  Van  Bakkelen 

230 

INDEX   TO    CASES   CITED. 


cxxxv 


Wareham  v.  Brown 
Warfield,  Ex  parte 

V.  Ross 
Waring,  In  re 
V.  C.  &  D.  R.  Co. 

V.  Coventry 


Section 
510 
630 
187 
34 
858 
50G 
V.  Darnall '  438,  439,  786  a 

V.  Purcell  556 

V.  Waring  438,  457,  562,  672 

Warland  v.  Col  well  328 

Warley  v.  Warley  564,  566 

Warman  v.  Seaman  161 

Warneford  v.  Thompson  765 

Warner  v.  Bates  112,  114,  115,  1 16 

V.  Daniels  167,  171,  173,  230 

V.  Martin  243 

V.  Van  Alstyne  232,  239 

V.  Wliittaker  221 

I'.  Winslow  221 

Warrall  v.  Morlar  239 

Warren  v.  Copelin  438 

V.  Davies  571 

V.  Fenn  232 

V.  Haley  648 

V.  Rudall  272 

—V.  Steer  139 

V.  Warrick  361 

Warriner  v.  Rogers  97,  98 

Warter  v.  Anderson  922 

('.  Hutchinson       306,  312,  315,  581 
Wartman  v.  Wartnian  474 

Wartrani  v.  Wartram  825 

Warwick  v.  Edwards  665 

V.  Hawkins  648,  651 

V.  Warwick  222,  834 

Wasby  v.  Foreman  246  a 

Washborne  v.  Downes  377 

Washburn  v.  Burn  681 

V  Sewell  46,  699,  724,  730, 

741,  7 '.8 
Washington,  &c.  R.  R.  Co.  v.  Alex- 
ander, &u.  R.  R.  Co.  282 
Washington  w.  Emery  466 
Watchman,  The  592 
Waterhouse  v.  Stansfield  72 

Waterman  v.  Baldwin  768 

Waterman  v.  Cochran  891,  900 

V.  Spaulding  780,  781,  788 

V.  Sprague  Manuf.  Co.  691 

V.  Webster  791 

Waters  v.  Bailey  129,  196 

V.  Conolly  590 

V.  Groom  199 

V.  Marjoram  500 

V.  Stickney  182 

V.  Tazewell  515,  6.53 

V.  Thorn  199,  202 

Watertown  v.  White  757 

Watkins,  Er  parte  65 

V.  Ciwrk  795,  800,  810 

V.  Ilohnan  41 


Section 

Watkins  v.  Jones  277 

V.  Quarles  880 

V.  Russell  289 

V.  Specht  312,  316,  343,  858 

V.  Stockett  226 

V.  Weston  357 

Watkyns  v.  VVatkyns    628,  633, 637, 673 

Watson  V.  Bagaley  589 

V.  Bane  238 

i:  Bothwell  182 

2'.  Brickwood  566 

V.  James  768 

V.  Knight  593 

V.  Le  Row  142,  149,  218 

V.  Marshall  630 

V.  Mayrant  121 

V.  Pearson    312,  315,  414,  499,  501 

V.  Saul  576,  745,  863 

V.  Stone  456,  914 

V.  Thurber  680 

V.  Toone  861 

V.  Wells  232 

Watt  V.  Ball  323 

V.  Creyke  511  a 

Watton  y.  Penfold  750 

Watts  V.  BuUas  107,  108 

V.  Cress  well  53 

V.  Girdlestone  453,  462,  466,  469, 

609,  539,  777 

V.  Kancie  809 

V.  Symes  347 

V.  Turner  520 

Watts'  Settlement  292 

Waugh  ?'.  Riley  55 

V.  Wyche  921 

Way  V.  Patty  237 

Way's  Settlement  101,  102 

Trust,  In  re  103,  104 

Wayman  v.  Jones  418,  419 

Wayne  v.  Hanham  761 

Waynesburg  College's  App.       82 

Weale  v.  Ollive  100 

Wearing  v.  Wearing  451 

Weatherby  ;;.  St   Giorgio  790 

Weaver  v.  Fisher  127,  128 

V.  Leiman  868,  865 

Webb  V.  Claverden  182 

»•.  Crawford  5"^0 

V.  Daggett  586,  590,  600 

V.  De  Beauvoisin  908 

V.  Deitrich  66,  276 

I'.  Grace  516 

V.  .Tones  566 

r.  Kelley  119 

V.  Ledsam  404,  411,  412 

V.  Lutrar  196 

V.  Neal  43,  276,  698 

V.  Robinson  288,  2.39 

V.  Sadler  2.'i4 
V.  Shaftesbury     275,  280,  282,  293, 

358,  427,  458,  608,  912,  913 


CXXXVl 


INDEX  TO    CASES   CITED. 


Section 

Section 

Webb  V.  Webb           395, 

569 

888,  918 

WeUs  V.  McCall    118  310 

a,  320,  386  a, 

V.  Wools        112,  113, 

115, 

118,  620 

652,  671 

Webb's  Appeal 

633,  641 

V.  Price 

636 

Webber  v.  Webber 

480 

V.  Prince 

856 

Webster  v.  Boddintjton 

385,  508 

V.  Stout 

672 

V.  Cooper      2yy,  307, 

312, 

315,  317 

V.  Thorman 

655,  660 

r.  King 

203 

V.  Wells 

602  g 

V.  Morris 

112, 

713,  73tj 

Welsh  V.  Foster 

380,  381 

V.  Newbold 

863 

Welston  r.  Hildreth 

678 

I'.  Vandeventer 

274 

343,  921 

Welt  V.  Franklin 

299 

V.  Webster 

438, 

672,  674 

Welton  V.  Devine 

14,3,  144 

Wedderburn  v.  Wedderburn 

200,  429, 

Wendell  ;•.  French 

463,  918 

4.30,  45-1,  470, 

745, 

851,  863, 

Wentworth  v.  Tubb 

480 

864, 

865,  923 

Werborn  v.  Austin 

866 

Wedgewood  v.  Adams 

787 

West  V.  Berry 

765 

AVeekliam  ?'.  Berry 

329 

V.  Biscoe 

299 

Weekly  v.  Ellis 

133 

V.  Erissey 

361,  367,  834 

Weeks  v.  Cornwall 

765 

V.  Fitz 

298,  312 

V.  Lego 

660 

V.  Jones 

419 

V.  Weeks 

633 

V.  Kerr 

516 

Weems  v.  Coker 

820  a 

V.  Knight 

695,  699 

V.  Harrold 

820  a 

V.  Moore     1 

170 

Weigand's  Appeal 

417,  420 

V.  Palmer 

693 

Weiland  v.  Townsend 

510 

V.  Eay 

611c 

Weir  V.  Tannehill 

594 

V.  Raymond 

202 

Weisbrod  v.  Chicago 

678 

V.  vShuttleworth   160, 

701,  702,  726 

Weiss  V.  Dill 

912 

V.  Sloan 

863 

Welborn  r.  Rogers 

864 

V.  Smith 

918 

Welby  V.  Welby 

189 

V.  Snodgrass 

592 

Welch,  In  re 

618 

V.  West 

647 

V.  Allen 

320 

Westbroke,  In  re 

904 

V.  Greenalge 

783 

Westbrook  v.  Harbeson 

226,  230 

V.  Mandeville 

330 

Westcott  V.  Cady 

541 

V.  McGrath 

195 

V.  Culliford 

476  a 

V.  Parran 

238 

V.  Edmands 

310,  311 

V.  Welch 

647,  649 

Wester's  Appeal 

194 

Weld  V.  Bonliam 

885 

Westerfield  i\  Janssen 

188 

Welford  v.  Beazclcy 

82 

V.  Kinmier 

133 

r.  Chancellor 

178 

Western  v.  Cartwright 

861 

Welhelm  v.  Falnier 

58 

Western  R.  R.  Co.  v.  Nolan      328.  3.30, 

Well  1'.  Thornagh 

182 

877 

Well  Beloved  Weeks,  In  re 

700 

Westervelt  v.  Hoff 

222 

Wellbeloved  t>.  Jones 

702,  732 

V.  Matheson 

187 

Wellborn  v.  Williams 

238 

Westgate  r.  Handiin 

602  « 

Weller  v.  Fitzhugh 

433 

V.  Monroe 

680 

V.  Ker 

508,  517 

Westley  t'.  Clarke 

416,  421 

V.  Weller 

508 

r.  Williamson 

891 

Welles  V.  Ely 

655 

Westniacott  v.  Robins 

231 

V.  Lewis 

502 

Westmeath  ;;.  Salisbury 

672 

V.  Middleton 

202 

V.  Westmeath 

672,  673 

V.  Yates 

186 

Weston  V.  Barker 

98,  593,  843 

Wellesley  i:  Beaufort 

613 

Westover  v.  Chapman 

297,  461,  468 

i\  Wellesley 

122,  672 

Westvelt  I'.  Gregg 

676 

Wcllman  v.  Lawrence 

602?- 

Wetherell  v.  Collins 

873,  892 

Wells  V.  Chapman 

330 

V.  Hamilton 

75 

V.  Poane                705 

720 

724,  748 

V.  Wetherell 

511c 

V.  Foster 

69 

V.  Wilson 

117 

V.  Francis 

129 

Wetherhed  i'  Wetherhed 

68 

V.  Heath 

736,  737,  748 

Wetmore  v.  Brown 

918 

V.  Lewis 

499 

V.  Parker 

43.  738 

V.  Malbon 

920,  926 

V.  Porter 

815  c 

INDEX   TO    CASES   CITED. 


CXXXVIl 


Wetiiiore  v.  Truslow 
Wetzel  V.  Chaplin 
Whale  V.  Booth 
Whaler  v.  Cox 
Whaley  v.  Urutnraond 
V.  Eliot 

V.  Whaley 

Whall  V.  Converse 

Whalley  v.  Whalley 
Whallon  v.  Scott 
Wham  V.  Love 
Wliarf  V.  Howell 
Whatford  v.  Moore 
Wheate  v.  Hall 
Wheatley  v.  Badger 
V.  Boyd 
V.  Purr 
Wheaton  v.  Wheaton 
Wheeler  (-•.  Bingham 
V.  Bowen 
V.  Howell 
V.  Kirtland 
V.  Lane 
V.  Moore 
V.  Newhall 
V.  Perry 
V.  Reynolds 
V.  i^mith 
V.  Stone 
V.  Sunnier 
V.  Warner 
Wheelock  r.  Moulton 
Wheete  v.  Hale 
Whelan  v.  Reilly 

V.  Whelan 
Wheldale  v.  Partridge 
Whelpdale  v.  Cookson 

Wherry  v.  Hale 

Whetham  v.  Clyde 
Whetstone  v.  Sts.  Bury 

r.  Whetstone's  Ex' 

Whichcote  v.  Lawrence 

V.  Lyle 
Whicker  v.  Hume 
Whipple  ".  Adam 
V.  Clure 

;'.  Fairchild 

Whistler  v.  Newman 

V.  Webb 
Wiiiston  V.  Rochester 
Whitall  V.  Clark 
Whitcomb  v.  Cardell 
V.  Jacob 
V.  Minichin 
White  V.  Albertson 
V.  Att'y-Gen. 
V.  Barton 
V.  Baugh 
V.  Baylor 
V.  Briggs 
V.  Brutton 


Section 
086  a 
98 
810,  811 
571 
511  b 
186 
126,  127,  133 
920 
861 
590,  592 
900 
226 
580 
375,  498,  511  a 
202 
343 
86,  98 
226 
512 
629,  642 
570 
133 
232 
642 
805 
262,  455,  928 
173 
117,  253 
602/) 
593 
757 
757 
498,  511  a 
117,  287 
83,  189,  201 
499 
195 
815  6 
184 
301,  309 
8tt3 
195,  867 
34,  299 
700,  709,  741 
115,  llrt 
189 
827  a 
658,  669,  900 
873 
742 
667 
82 
835,  837 
195 
380 
730,  748 
261,  827 
443 
311,  312 
112,  113,  390 
113 


Section 
White  w.  Bullock  421,  918 
V.  Callinan  679 
V.  Carmarthen,  &c.  Railway  752, 754 
V.  Carpenter  126,  132,  133,  139 
V.  Carter 
V.  Casanave 
V.  Commonwealth 
V.  Cook 


V.  Cuddon 
V.  Damon 
-V.  Ditson 
V.  Dougherty 

V.  Drew 

V.  Evans 

V.  Ewer 

V.  Fisk 

V.  Flora 

V.  Foljambe 

r.  Grane 

V.  Hale 

V.  Hall 

V.  Hampton 

V.  Haynes 

V.  Hicks 

V.  Hildreth 

V.  Howard 

V.  Leavitt 

i\  Linc(jln 

V.  Malcomb 

V.  McDermott 

V.  McNutt 

V.  Montserratt 

V.  Nutts 

V.  Parker 

V.  Patten 

V.  Selden 

V.  Sheldon 

V.  Simpson 

V.  Sprague 

V.  St.  Barbe 
— y.  Stanfield 

V.  Story 

V.  Stover 

V.  University 

V.  Watkins 

V.  Weldon 


183, 


369 
232 
877 
795 
770 
187 
705 
237 
127 
94,  150 
855 
713,  720 
1»7 
774,  786 
612 
384,  730,  737 
748 
38,  240,  721 
873 
509  c 
678 
393,  715,  748,  765 
864 
446,  821 
602  r 
503 
660,  680 
590 
122 
305,  8U7 
246  a 
848 
140 
317 
893 
511  a 
366,  827  b 
680 
238 
748 
411,  602  ff 
137 


V.  White  71,  72,  118,  240.  256.  277, 

287,  386  a,  532, 533,  5f)4,  690, 

699,  719,  729,  730,  849,  868. 

864,  874 

V.Whitney  602 /,  602,/ 

V.  Williams     94,  150,  232,  237,  288 

V.  Wilson  248 

White's  Trust,  Fn  re  250,  251 

White  School  House  v.  Post     244,  245 

Whiteacre,  Ex  parte  337 

Whitehead,  Ex  parte  619 

Whitehorn  r.  Hines  189,  204 

Whitehurst  v.  Harper         251,  255,  639 

Whiteley  v.  Learoyd  458 

Whitesides  v.  Carman  660 


CXXXVlll 


INDEX   TO    CASES   CITED. 


Section 
Whitesides  v.  Dorris  627,  628 

r.  Greenlee  1^1 

Whitfield  V.  Burnett  540 

V.  Prickett  388,  655 

V.  Whitfield  617 

Whitehead  v.  Lord  804 

Whitin^^  V.  Gould  84,  85 

V.  Whiting  112,  117,  343,  86G 

Whitlofk's  Case  530 

Whitman's  Appeal  200 

Whitmarsh  v  Robertson  826,  894,  901 
Whituiore  v.  Turquand  5y3,  826 

V.  Weld  53 

Whitney  r.  Krows  500 

Whittiiker,  In  re  603 

Wliittemore  r.  Cowell  167 

Whitten  v.  VVhitten  143 

Whittenden  Mills  v.  Upton  757 

Whittick  V.  Kane  218 

Wliittle  V.  Halhday  878 

V.  Henning  633 

Whittlesey  v.  Hughes  402 

Whitton  V.  Whitton  1(52 

Whitworth  v.  Carter  686 

V.  Davis  231 

Whorvvood  r.  University  Coll.  718 

Wliyte  V.  Arthur  86 

Wifkes  i\  Clarke  628 

Wickesham  i\  Savage  254 

Wickham  v.  Berry  305,  526 

V.  New  Brunswick  &  Canada 


Railway 

Wieklifie  v.  Lexington 

Wickman  r.  Robinson 

Wicks  V.  Westcott 

Widdowsen  v.  Duck 
Widgery  i\  Haskell 
Widmore  v.  Woodroffe 
Widner  v.  Fay 
Wiener  r.  Davis 
Wigg  i\  Wigg 
Wiggin  V.  Swett 

V.  Wiggin 

Wigglesworth  v.  Steers 
Wight  V.  Leigh 
Wightman  v.  Doe 
Wightwick  V   Lord 
Wiirsell  '•.  Wigsell 
Wike's  Case 
Wilbur  i\  Spofford 
Wilcocks  i\  Hannyngton 
Wilcox  ?'.  Calloway 

r.  Kellogg 

V.  Morris 

?•.  Wilcox 
Wild  V.  Wells 
Wilde  V.  Davis 

t;.  Gibson 
Wilderman  v.  Baltimore 
Wilding  V.  Bolder 

c\  Richards 


750 

863,  864- 

231 

770 

457,  474 

593 

255,  701 

918 

586 

121,  217,  221 

556 

133 

191 

859 

602  t,  782 

450,  561,  771 

348 

40,  325,  633 

602  h 

96,  101,  102 

239 

586 

602  <f 

312 

871 

397 

172,  180 

748 

69,  277,  297 

693 


Wiles  r.  Cooper 
V.  Gresham 

V.  Greshon 

V.  Wiles 
Wiley  v.  Collins 

i:  Smith 
Wilhelm  v.  Folmer 
Wilkes  i".  Ferris 

V.  Holmes 

V.  Steward 

i:  Wilkes 
Wilkins  v.  Anderson 

V.  Frye 

V.  Gordon 

V.  Hogg 

V.  Hunt 

V.  Stevens 
Wilkinson,  Ex  parte 

In  re 

V.  Bewick 

V.  Bradfield 

V.  Charlesworth 

V.  Cheatham 

V.  Duncan 

V.  Getty 

V.  Gibson 

V.  Lindgren 

V.  Malin 
V.  May 

V.  Parry 

V.  Stafford 

V.  Stewart 


Section 

888 

438,  440,  460,  482, 

847 

185 

627.  628,  629 

593 

359,  370 

127 

585 

5116 

463,  460 

672 

217 

786 

602  ee 

417 

892 

137 

263 

455 

443 

189,  226 

641 

647 

450 

248 

920 

903  a 

413,  725 

520 

285,  286,  402 

465 

243 


Wilkinson  66, 162, 189,  388. 555, 
678,  912 


r.  Wright 
Wilkinson's  Estate 
Wilks  v.  Fitzpatrick 

u.  Groome 
Wilkson  r.  Leland 
Wiilan  1-.  Willan 
Willard  v.  Eastman 

V.  Fenn 

V.  Ware 

V.  Willard 
Willard's  Appeal 
Willats  V.  Busby 

\Villets  V.  Willets 

Willett  V.  Blanford 

V.  Sandford 
William  v.  Mosher 
William's  Case 

Estate,  In  re 

Settlement 
Williams,  Ex  parte 

V.  Allen 

V.  Bailey 

V.  Branch  Bank 

V.  Brown 

i;.  Callow 

V.  Carle 


682 
863 
627 

443,  446 
610 
171,  184,  189 
661 
425 
338 
77,  82,  147 
119 
883 
121 

429,  430 

7 

918 

654,  610,  618 

787 

291 

611  b,  614 

543,  877 
652 
910 

126,  586 

634,  637 
213 


INDEX    TO    CASES   CITED. 


CXXXIX 


Section 

Williams  v.  Carter 

375,  767 

V.  Chitty 

34,  569 

V.  Clairborne 

647 

V.  Coade 

160 

V.  Conrad 

262 

V.  Corbett 

123,  907 

V.  Cork 

863 

V.  Cashing 

259,  262 

V.  Donaldson 

660 

V.  First  Pres.  See.      229,  299,  312, 
320,  860,  864 
V.  Fitch  182 

V.  Harrington  610 

V.  Headland  924 

V.  Holllngworth  126,  127 

V.  Jones  150,  153 

V.  Kershaw  159,  573,  712,  748 

V.  King  270 

V.  Lewis  396 

V.  Lonsdale  325,  484 

V.  Maitland  421 

V.  Mans  72 

V.  Marshall  205 

V  Massey  812 

V.  Mattocks  891 

V.  MauU  648,  649 

V.  McConico  305 

V.  Moslyn  593 

V.  Munroe  782 

V.  Nixon       262,  412,  417,  419,  421, 
423,  424,  466 
V.  Otey  598,  602  g,  602  m,  621,  795 
V.  Owen  226 

V.  Parry  274 

V.  Pearson    694,  721,  722,  730,  748 
V.  Powell  200,  468,  471,  851 

V.  Roberts  232,  237 

V.  Salmond  885 

V.  Stevens  427,  429 

V.  Teal  376 

V.  Thorn  386  a 

V.  Van  Tuyl  120 

V.  Vreeland  104,  171,  181,  182 

V.  Waters  298,  301,  310 

r.  Wentworth  480 

V.  Williams  112,  113,  114, 146, 147, 
396,  398,  493.  687,  694,  709, 
728,  737,  838,  748 
V.  Wood  239 

V.  Woodward  768,  769 

V.  Young  234,  238 

Williams's  Adm'r  v.  Williams  443 

Williams's  Appenl  652 

Williamson  o.  Beckliam  655,  660 

V.  Berry  603,  610 

V.  Branch  Bank  225 

V.  Coddrington  111,  367 

V.  Curtis  597,  795 

V.  Field  230,  768 

V.  Gihon  214 

V.  Morton  25,  794,  800,  810 


Section 
Williamson  v.   New  Albany,  &c. 

Railway  Co.  759,  760 

V.  Suydam  282,  766 

V.  VVickersham  282 

V.  Williamson      462,  468,  547,  548, 
551,  660 


t'.  Woodard 

His 

Williard  v.  Williard 

133,  134,  215 

Willie  V.  Ellice 

875 

Williman  v.  Holmes 

300,  310,  312 

Willington  v.  Adam 

93 

Willink  V.  Morris  Canal, 

&c.  Co.      759 

V.  Vanderveer 

142 

Willis  V.  Brown 

706 

V.  Cadenhead 

677 

V.  Foster 

828 

V.  Hiscox 

520,  900,  901 

V.  Kibble 

904 

V.  Smyth 

82 

V.  Willis 

126,  137 

V.  Yernegan 

187,  189 

Williston  I'.  Miciiigan,  &c 

.  Railw.     545 

Wiilmot  V.  Jenkins 

263,  574 

Willoughby  V.  Willoughby                218 

Wills  I'.  Cooper 

347 

V.  Cowper 

500 

V.  Sayers 

647,  649 

Wills's  Appeal 

440,  453 

Willson  V.  Tyson 

918 

Wilmerding  v.  Mckesson     469, 47 1 

Wilmerding  ?•.  Russ 

8f.5 

Wilmot  V.  Pike 

438 

Wilson,  /«  re 

610,  910 

V.  Allen                  349, 

351,  :!54,  355 

V.  Ball 

113,  117 

V.  Bennett   339,  340, 

394,  495,  503, 

504 

V.  Brownsmith 

903  a 

V.  Castro 

126 

V.  Cheshire 

165,  301 

V.  Clapham 

122 

V.  Daniel 

213 

V.  Davison             239, 

598,  797,  798 

I'.  Day 

587,  590 

V.  Dennison 

408,  413 

V.  Dent 

77,  82 

V.  Doster 

810 

V.  Eden 

511c 

V.  Edmonds 

540 

V.  Forsyth 

591 

V.  Goodman 

848 

V.  Graham 

237 

V.  Gray 

590 

V.  Halliley 

597 

V.  Harman 

556 

V.  Hoare 

326 

V.  Lynt 

738,  748 

V.  Maddison 

117 

V.  Major 

113,  116 

V.  Md.  Life  Ins.  Co. 

768 

V.  McAuley 

748 

cxl 


INDEX   TO    CASES    CITED. 


Section 

Section 

Wilson  V.  McCulIough                         34 

Wise  V.  Wise 

259 

V.  Moore         245,  848,  863,  875,  87(5 

Wiseman  v.  Ba 

^lor 

86 

V.  Musliet                                      672 

Wiseman  i\  Beake 

188 

t'.  Peake                                        472 

V.  Roper 

111 

V.  Pennock                                    273 

Wistar's  Appeal 

468,  911,  918  n 

V.  South  Park  Com'rs                 785 

Wibwall  V.  Ross 

602  < 

,  602  /(,  602  r. 

V.  Squire                                      993  a 

602  bb 

V.  Tappan                                       93 

V.  Stewart 

428 

V.  Towie                       240,  287,  294 

V.  Ticknor 

592 

V.  Troup     602  d,  002  g,  602  h,  602  «, 

Wiswell  V.  First  Con 

g.  Churcl 

1     476  a, 

853 

928 

V.  Wilson       94,  275,  282,  385,  395, 

Witham  v.  Brooner 

298 

299,  520 

397,  654,  672,  673,  900,  918 

Witliers  v.  Allgood 

358 

Wilson's  Appeal                                910 

V.  Ewing 

2»0 

Estate                                      68, 262 

V.  Hichman 

618 

Wilt  r.  Franklin                  259,  590,  598 

V.  Withers 

126 

Wiltbank's  Appeal                              545 

V.  Yeadon      38, 

117, 

121, 

248,  251, 

Wilton  V.  Devine                                 143 

254,  2.55 

V.  Hill                    654,  671,  826,  849 

Witherspoon,  Ex  pa 

•te 

918 

V.  Jones                                         873 

Witliey  V.  Mangles 

257 

Winibish  v.  Montgomery  Mut. 

Withington  v.  Withington 

292 

liuildlr.g  &  Loan  Assoc.         122 

Witman  r.  Lex    701 

124 

728 

731,  748 

Winch  V.  Brutton                                112 

V.  Norton 

570 

V.  James                                        636 

Witman's  Appeal 

918 

V.  Keeley                                       345 

Witnier's  A[ipeal 

462 

V.  Railway  Co.                             757 

Witte  V.  Wolfe 

827  rt 

V.  Winch                                       615 

Witter  V.  Duley 

263 

V.  Winchester                               174 

V.  Witter 

17 

466 

521,  605 

Winchelsea  v.  Garrety                       206 

Witts  r.  Boddington 

248, 

250, 

251,  258 

V.  Nordcliff                   458,  605,  611 

V.  Daw-kins 

655,  670 

Winchester  v.  Baltimore  R.  R.  Co.  222 

V.  Home}' 

126,  137 

V.  Knight                                       871 

V.  Steere 

544,  545 

Winchester,  &o.  Turnpike  C.             157 

Woelper's  Appeal 

633 

Winder  v.  Diffenderffer                     842 

Wolf  V.  Corley 

75 

Winebrenner  v.  Colder                       733 

V.  Eichelberger 

606 

V.  Weisiger                                    214 

V.  Hill 

776 

Wing  V.  Cooper                                602  g 

AVolfe  V.  McDowell 

602  rf 

Winged  v.  Lef'ebury                    217,  231 

V.  Washburn 

438,  440 

Wingfield  V.  Rhea                   815  a 

Wolff  V.  Van  Meter 

680 

Wingfield's  Case                                   701 

Wolford  v.  Hewington 

172,  215 

Winkfield  v.  P>rinkman                       127 

Wollaston  v.  Tribe 

104 

Winn  V.  Dillon                                     206 

Wolley  V.  Jenkins 

498 

V  Fen  wick                                    2-58 

Wolstoncraft  v.  Long 

f-97 

WinnaW,  Ex  parte                                 402 

Womack  v.  Austin 

847 

Winona  &  St.  P.  R.  Co.  v.  St. 

Wood  I'.  Abrey 

183, 

187,  192 

Paul  &  S.  C.  n  Co.                     816  rt 

Wood  V.  Bank  of  Kentucky 

237 

Winslow  r.  Ancrum                            600 

?•.  Brown 

281,  884 

V.  Cummings        701,  724,  730,  748 

V.  Burnham 

330, 

359,  370 

V.  Tighe                                         106 

i\  Colvin 

602  i 

V.  Trowbridge                              724 

V.  Cox 

112, 

114, 

152,  153 

Winsmith  ?7.  Winsmith           815  a 

V.  Downes 

200, 

201, 

202,  827 

Winston  v.  Gwathiney                        174 

V.  Dudley 

571 

V.  Jones                                         766 

V.  Dummer 

242 

Winter  v.  Anson                 235,  236,  239 

V.  Garnett 

468 

V.  Geroe                              205,  602  v 

V.  Goodridge 

768 

V.  Rudge                                        291 

V.  Hardisty 

260 

V.  Walters                                   677 

V.  Harman 

509, 

794,  799 

Wintermute  v.  Snvder                        184 

V.  Lee 

918 

Wintlirop  ('.  Att'y'-Gen'l                    287 

V.  Mann 

221 

Wi.«den  v.  Wisden                            511  c 

V.  Mather 

305,  610 

Wise,  In  re                                           803 

V.  McCann 

214 

INDEX    TO    CASES    CITED. 


cxli 


Section 

Wood  V.  Midgeley  84 

V.  Partridge  438 

V.  Richardson       117,  511,  770,  787 

V.  Snow  602  n 

V.  Sparks  262,  499 

V.  Stane  275 

V.  Vanderburg  891 

V.  White  498,  766,  802 

V.  Wood       256,  305,  391,  411,  417, 

420,  460,  466 

Wood's  Appeal  918 

Woodbridge  v.  Perkins  438 

Woodbiirn  v.  Mosher  590 

V.  Woodburn  539 

Woodbury  v.  Obear  891 

Woodcock  ('.  Dorset  580 

V.  Renneck  250,  258 

Woodford  V.  Oliarnley  101,  102 

V.  Parkluirst  099 

V.  Stevens  127 

Woodgate  v.  Flint  317 

Woodhead  v.  Marriott  900 

Woodhouse  v.  Haskins  359 

V.  Meredith  206 

Woodhull  V.  Longstreet  769 

V.  Osborne  135 

Woodin,  Ex  parte  246,  907 

Woodlee  v.  Bnn;h  199 

Woodliffe  IK  Drury  161 

Woodman  v.  Good  540,  541 

V.  Morrel      126,  143,  144,  146,  147, 

151 

V.  Neal  678 

Woodmeston  v.  Walker  652,  671 

Woodroff  ('.  Burton  183 

Woodruff  V.  Cook    205,  218,  476  o,  928 

V.  Orange  328 

V.  Robb  602  d 

l:  Snedecor  441,  918,  note 

Woodrum  v.  Kirkpatrick  648 

Woods  V.  Axton  907 

V.  Bailey  232 

Woods  V.  Dille  84 

V.  Farmene  241 

V.  Sullivan  546,  547 

V.  Tombs  456 

V.  Williams  873 

V.  Woods       113,  117,  118,  620,  886 

Woodson  V.  McClelland  109 

V.  Perkins  660 

Woodward  v.  Halsey  511  6 

V.  Schatzell  72 

V.  Seaver  685 

V.  Woodward  239,  607 

Woodward's  Appeal  458 

Wood  wine  I'.  Woodrum  793 

Wooldredge  v.  Stone  119 

Wooldridge  v.  Planters'  Bank  284, 

602  m,  621 

V.  Watkins  499,  500 

Woolf  V.  Bate  330 


Section 

Woollam  V.  Hearne  38,  76,  226 

Woollands  v.  Crowcher  633 

Woollett  r.  Harris  157,  158 

Woohner's  Estate  160 

Woohnore  v.  Burrows        366,  375,  390 

Woolsey  v.  Verner  592 

Wooten  V.  Burch  546,  547 

V.  Sherrard  456 

Worbass  «.  Armstrong  900,  9W 

Worcester  v.  Western  Railway         757 

Worcester  Cori\  Exch.  Co.  486 

Wordsworth,  In  re  281 

Work  V.  Brayton  239 

Worley  v.  Frampton  786 

V.  Naylor  602  r 

Wormack  v.  Austin  460 

V.  Rogers  187 

Wormley  o.  Wormley       217,  221,  460. 

475,  509,  593,  770,  777,  794 

Worrall  v.  Harford     417,  894,  907,  910 

V.  Jacobs  672,  673 

V.  Marlar  636 

V.  Worrall  672 

Worrell  v.  Presbyterian  Church       730 

Worrell's  Aj)peal  900 

Worsley  v.  Scarborough  222 

Worth  ('.  Arden  264 

V.  Curtis  606 

V.  McAden  262,  415,  416,  418 

Wortiiam  v.  Pemberton  633 

Worthington  v.  Evans        502,  517,  518 

V.  McCraer  618,  619 

Worthy  v.  Joimson  621 

Wott  i".  Grove  206 

Wrae  v.  Seed  821 

Wragg  V.  Comptroller  Gen.  232 

Wrangham,  Ex  parte  743 


Wray 

V.  Steele 

132 

Wren 

?'.  Kirton 

405, 

443, 

444,  463 

Wrey 

('.  Smith 

551 

Wriglit,  In  re 

925 

V. 

Arnold       170, 

627, 

629 

630,  849 

V. 

Atkins 

112, 

113 

114,  120 

V. 

Barlow 

51 W) 

V. 

Booth 

189 

V. 

Brown 

645,  685 

V. 

Bundy 

602  r/ 

V. 

Cadogan 

656 

V. 

Cain 

75 

V. 

Campbell 

195 

V. 

Chard 

658, 

6.59,  872 

V. 

Dante 

'^7,  2:^2 

V. 

Delafield 

320 

V. 

Dorchester 

438 

V. 

Douglass 

81 

,82, 

328,  520 

V. 

Gay 

133 

V. 

Goff 

511  a 

V. 

Henderson 

602 

V. 

King 

1.33,  137 

V. 

Lynn 

700, 

730,  718 

V. 

Miller         98, 

112, 

117, 

538,  5J6 

cxlii 


INDEX   TO   CASES   CITED. 


Wright  V.  Morley 
V.  Pearson 
V.  Proud 
V.  Kose 
V.  Riitter 
V.  Smith 
V.  Snowe 


Section 

633,  634 

305,  357,  359 

200,  201,  204,  209 

641 

195 

53, 170, 171,  849,  930 

V.  Trustees  Meth.Epis.  Church  55, 

499,  730,  748 

V.  Vanderplank  201 

V.  Wakeford  511  b,  783,  784 

V.  Wilkin  121 

U.Wilson  187602  2 

V.  Woodland  239 

V.  Wright      468,  471,  652,  891,  918 

Wright's  Appeal  569 

Trusts  922 

Wriglev  v.  Swainson  218 

i\  Sykes  802,  803,  805 

Writhingham  v.  Burgoyne  214 

Wroe  V.  Seed  900 

Wyatt  V.  Sharratt  825,  826,  827 

Wych  V.  East  India  Co.  858,  859 

Wykham  v.  Wykham 


Wyman  v.  Babcock 

V.  Carter 
Wyncoop  v.  Wj-ncoop 
Wynn  r.  Sharer 

V.  Hawkins 

V.  Humberstone 

V.  Styan 

V.  Warren 


305,  308,  31 
319,  511  c,  540 
226 
500 
205 

127,  138 
112 

822,  823 
856 
453 


Yader's  Appeal 
Yale  V.  Dederer 
Yallop,  Ex  parte 

V.  Halwortliy 
Yancy  v.  Manck 
Yarborough  v.  West 
Yard's  Appeal 
Yardley  v.  Raub 
Yarnall's  Appeal     310  a, 

Yarnold  v.  Moorhouse 
Yates  V.  Compton 

c.  Hambly 

V.  Yates 
Yeates  v.  Grover 

V.  Prior 
Yeldell  v.  Quarles 
Yem  V.  Edwards 
Yerby  v.  Lynch 
Yerger  v.  Jones  225, 


468 

645,  660,  680 

131 

871 

232 

97 

381,  384,  737 

664,  665,  666 

316,  320,  358, 

361,  652 

388,  555 

119,  308,  765 

873 

548,  551,  748 

68 

175 

627 

196 

643 

836,  841,  842 


Section 

Yoke  V.  Barnet 

6^0 

Yonge  V.  Hooper 

195 

York  V.  Brown 

432,  895 

York  V.  Eaton 

136 

V.  Mackenzie 

867 

V.  North  Midland  R. 

Co. 

207 

York,  &c.  Railway  Co.  v 

My 

2rs  602  ee 

York  Railway  v.  Hudson 

904 

You  V.  Elinn 

299 

Youge  V.  Furst 

615 

Young,  Ex  parte 

918 

V.  Bent  buy  sen 

783 

V.  Bradley 

312 

V.  Brush 

468 

V.  Bumpass 

180 

V.  Comb 

468 

V.  Frost 

187 

V.  Graff 

32,602/- 

V.  Jones 

664 

V.  Keogh 

610 

V.  Mackall 

863 

V.  Martin 

112 

113,  115 

V.  Miles 

329 

V.  Peachy      104,  151 

162 

,  201,  225 

V.  Scott 

888 

V.  Swiggs 

769 

V.  Waterpark 

863,  866 

r.  Williams 

238 

V.  Wilton 

558 

V.  Wood 

237 

V.  Young    283,  648,  649,  655,  820  a 

Younge  v.  Graff 

680 

Younger  v.  Welham 

413 

Younghusband  v.  Gisborne 

119,  386. 

555 

Youse  I'.  Martin 

221 

Yundt's  Appeal 

468 

Zabriskie  v.  M.  & 

E.    R.  R. 

Co. 

321 

Zacharias  v.  Zacharias 

863 

Zarabaco  v.  Cassanetti 

482 

Zanesville  C.  &  M.  Co. 

V.  Zanes- 

ville 

731,  748 

Zeback  v.  Smith 

499,  765 

Zeisweiss  v.  James     697 

721,  730,  732, 

748 

Zeller  v.  Eckert 

863,  864 

Zentmyer  v.  IMiltower 

232 

Zimmerman  v.  Anders 

731,  748 

V.  Harmon 

195 

V.  Kinkle 

815  c 

Zoach  V.  Lloyd 

611 

Zouch  V.  Parsons 

33 

LAW    OF    TRUSTS. 


CHAPTER  I. 

INTRODUCTION. 

OEIGIN,   HISTORY,  DEFINITION,   AND   DIVISION   OR   CLASSIFICATION 

OF   TRUSTS. 

§  1,   The  general  nature  of  trusts. 

§  2.  The  technical  nature  of  trusts,  and  their  origin  in  the  Jidei  commissa  of  the 
Roman  law. 

§  3.   The  origin  of  uses. 

§  4.   The  inconveniences  that  arose  from  the  prevalence  of  uses, 

§  5.    The  statute  of  uses. 
§§  6,  7.   The  effect  of  the  statute  of  uses,  and  the  origin  of  trusts. 
§§  8,  9, 10.    Development  of  trusts  in  England  and  America. 

§  11.    Advantage  of  the  late  adoption  of  trusts  in  America. 

§  12.    Object  of  this  treatise. 
§§  13-17.  -  Definition  of  trusts. 

Classification  of  trusts. 

§  18.  Simple  and  special  trusts. 

§  19.  Ministerial  and  discretionary  trusts. 

§  20.  A  mixed  trust  and  power,  and  a  power  annexed  to  a  trust. 

§  21.  Legal  and  illegal  trusts. 

§  22.  Public  and  private  trusts. 

§  23.  Duration  of  a  private  trust  and  of  a  public  trust. 

§§  24-27.  Express  trusts,  implied  trusts,  resulting  trusts,  and  constructive  trusts. 

§  1.  In  the  earlier  states  of  society  the  rules  that  govern 
the  ownership,  disposition,  and  use  of  property  are  simple 
and  of  easy  application.  But  as  States  increase,  as  property 
accumulates,  and  the  business  and  relations  of  life  become 
more  complex,  the  rules  of  law  which  the  new  complications 
demand  become  themselves  complicated,  and  sometimes  diffi- 
cult to  understand  and  apply.  The  law,  doctrine,  and  learn- 
ing of  trusts  thus  had  a  late  origin  and  a  slow  and  gradual 
development.     The  word  "  trust,"  in  its  popular  and  broadest 

VOL.  I.  —  1  1 


§  2.]  INTKODUCTION.  [CHAP.  I. 

sense,  embraces  a  multitude  of  relations,  duties,  and  respon- 
sibilities. Thus,  executors  and  administrators,  guardians  of 
infants  and  lunatics,  assignees  in  insolvency  and  bankruptcy, 
bailees,  factors,  agents,  commission  merchants,  and  common 
carriers,  as  well  as  the  officers  of  public  and  private  corpora- 
tions, all  exercise  a  kind  of  trust.  Indeed,  one  definition  of  a 
trustee  is  "  a  person  in  whom  some  estate,  interest,  or  power 
in  or  affecting  property  of  any  description  is  vested  for  the 
benefit  of  another."  This  definition  embraces  all  the  trusts 
and  offices  above  named,  but  the  law  in  relation  to  many,  if 
not  all  of  them,  is  or  may  be  administered  in  the  common-law 
courts.  It  is  not  of  the  law  of  such  trusts  that  this  treatise 
concerns  itself. 

§  2.  The  trusts  here  treated  are  defined  to  be  "  an  obligation 
upon  a  person  arising  out  of  a  confidence  reposed  in  him  to 
apply  property  faithfully  and  according  to  such  confidence."  ^ 
Another  author  says  that  "  a  trust  is  in  the  nature  of  a  depo- 
sition by  which  a  proprietor  transfers  to  another  the  property 
of  the  subject  intrusted,  not  that  it  should  remain  with  him, 
but  that  it  should  be  applied  to  certain  uses  for  the  behoof  of 
a  third  party."  ^  Such  trrsts  originated,  and  were  first  de- 
fined and  reduced  to  practice,  under  the  jurisdiction  of  courts 
by  the  civil  law.  It  was  a  rule  of  that  law  that  a  testator 
could  not  name  a  devisee  to  succeed  the  first  devisee  of  prop- 
erty, but  the  first  devisee  took  the  absolute  legal  and  bene- 
ficial ownership  of  the  property;  that  is,  a  testator  could  not 
direct  and  control  the  use  of  his  property  after  his  death. 
This  rule  was  modified  so  far  that  a  testator  might  name  an 
heir  to  succeed,  if  the  first  heir  died  too  young  to  make  a 
will,  but  in  all  other  cases  the  testator  could  only  rely  upon 
the  good  faith  of  the  first  taker  of  his  property,  to  bestow  the 
use  according  to  his  directions.  This  trust  or  confidence  was 
called  jidei  commissum,  but  there  were  no  means  whereby  the 
performance  of  the  commission  could  be  compelled.     It  was 

1  Stair's  Institutions  of  the  Laws  of  Scotland,  B.  IV.  tit.  6,  §  2,  p.  591; 
§  3,  pp.  592-594. 

2  Erskine's  Institutes  of  the  Laws  of  Scotland,  B.  IIL  p.  454. 

2 


CHAP.  I.]  ORIGIN    OF   TRUSTS.  [§  3. 

called  infirmum  or  preearium,  because  it  depended  upon  the 
personal  inclination,  integrity,  and  good  faith  of  the  person 
trusted.  Tliere  were  man}^  of  these  imperfect  trusts,  where 
in  conscience  the  first  taker  was  bound  to  give  the  beneficial 
use,  or  to  transfer  the  property  itself,  to  a  third  person.  Such 
third  persons  had  an  equitable,  moral  claim  or  right,  but  no 
legal  remedy.  Under  these  circumstances,  application  was 
made  to  the  Emperor  Augustus,  and  he  directed  the  consuls 
to  interpose  their  authority,  and  compel  the  execution  of  such 
trusts.  Finally  a  praetor  was  appointed,  called  jidei  commis- 
sarius,  who  had  jurisdiction  over  all  fidei  commissa,  and  full 
power  to  give  adequate  relief  in  all  proper  cases.^ 

§  3.  It  is  supposed  that  these  fidei  commissa  were  the 
models  of  uses  which  were  afterwards  introduced  into  England 
by  the  clergy  to  elude  and  avoid  the  operation  of  the  statutes 
of  mortmain.  After  the  passing  of  those  statutes,  which  were 
intended  to  forbid  and  prevent  the  accumulation  of  the  lands 
of  the  kingdom  in  the  hands  of  religious  houses  and  corpora- 
tions, it  became  the  practice  to  convey  lands  to  one  person  for 
the  use  of  another,  or  for  the  use  of  a  corporation.  Thus  the 
legal  title  was  in  one  individual,  but  the  beneficial  use  was  in 
another.  At  this  time  the  writ  of  subpoena  was  contrived, 
which  issued  out  of  chancery,  and  compelled  a  person  who 
held  a  legal  title  to  another's  use  to  answer  in  chancery,  and 
to  perform  and  execute  the  use.  Thus  uses  were  introduced 
in  England  to  circumvent  the  public  policy  of  the  kingdom 
and  to  avoid  the  statutes  of  mortmain,  and  the  writ  of  sub- 
poena was  introduced  after  the  model  of  the  jurisdiction  of 
the  prcetor  commissarius  to  prevent  those  persons  who  were 
trusted  to  execute  a  use,  from  committing  a  fraud  in  refusing 
to  perform  it.^     These  contrivances,  originating  in  evasions 

1  Ulpianus,  tit.  25;  Tnst.  Lib.  II.  tit.  23,  §  2;  2  Fonb.  Eq.  p.  2; 
1  Cruise,  Dig.  p.  398;  and  see  Willis  on  Trustees,  pp.  1-8,  and  notes; 
Bacon,  Readings  upon  the  Stat,  of  Uses,  Vol.  XIV.  pp.  301,  302,  Boston 
ed.  18G1. 

2  Attorney-General  v.  Sands,  Hard.  491.  "  The  parents  of  trusts  were 
fraud  and  fear,  and  a  court  of  conscience  was  the  nurse." 

3 


§  5.]  INTRODUCTION.  [CHAP.  I. 

of  the  law,  were  laid  hold  of  during  the  civil  wars  of  York 
and  Lancaster  to  facilitate  family  settlements,  and  to  prevent 
the  forfeiture  of  estates  for  treason  during  those  unhappy 
strifes.  Thus  conveyances  to  uses  became  the  common  form 
of  transferring  land. 

§  4.  Under  this  practice  a  very  refined  system  grew  up. 
The  legal  estate  was  in  one  person,  and  the  use  and  enjoyment 
was  in  another.  There  were  two  titles  and  estates  in  the 
same  land,  —  that  of  the  feoffee,  who  was  the  legal  owner, 
and  yet  had  nothing,  and  that  of  the  cestui  que  use,  who  had 
the  whole  beneficial  right  and  interest,  and  yet  had  no  legal 
right  or  title.  He  had  nevertheless  a  substantial  interest  and 
estate  which  he  could  convey,  devise,  and  otherwise  deal  with, 
as  with  tangible  property.  Great  inconveniences  arose  from 
this  double  system.  Bacon's  Abridgment,  Uses  and  Trusts, 
sums  them  up  as  follows :  "  By  this  course  of  putting  lands 
into  uses  there  were  many  inconveniences,  as  this  use,  which 
grew  first  from  a  reasonable  cause,  namely,  to  give  men  the 
power  and  liberty  to  dispose  of  their  own,  was  turned  to 
deceive  many  of  their  just  and  reasonable  rights,  as,  namely, 
a  man  that  had  cause  to  sue  for  his  land  knew  not  against 
whom  to  bring  his  action  nor  who  was  owner  of  it.  The  wife 
was  defrauded  of  her  thirds,  the  husband  of  being  tenant  by 
curtesy,  the  lord  of  his  wardship,  relief,  heriot,  and  escheat, 
the  creditor  of  his  extent  for  debt,  the  poor  tenant  of  his 
lease  ;  for  these  rights  and  duties  were  given  by  law  from  him 
that  was  owner  of  the  land,  and  none  other,  which  was  now 
the  feoffee  of  the  trust." 

§  5.  Many  statutes  were  passed  during  a  series  of  years  to 
cure  or  to  prevent  these  mischiefs  or  hardships.  At  last  the 
statute  of  uses,  27  Hen.  VHI.  c.  10,  was  enacted,  which  con- 
verted the  beneficial  use  into  the  legal  ownership ;  that  is  to 
say,  if  lands  were  conveyed  to  A.  to  the  use  of  B.,  the  statute 
executed  or  converted  the  use  into  a  legal  estate  in  B.,  and 
divested  all  title  out  of  A.  By  the  operation  of  this  statute 
the  Court  of  Chancery  lost  for  a  time  much  of  its  business; 
4 


CHAP.  I.]  HISTORY   OP  TRUSTS.  [§  6. 

for  after  the  statute  the  legal  title  as  "well  as  the  beneficial 
use  was  in  the  cestui  que  use,  and  he  could  deal  with  his  estate 
as  his  own  in  every  respect ;  he  was  no  longer  compelled  to 
appeal  to  the  conscience  of  the  feoffee  to  uses,  nor  to  the 
equity  powers  of  the  court. 

§  6.  But  there  were  certain  gifts,  grants,  or  estates  to  uses 
which  the  statute  did  not  toucli,  and  which  remained  as  before 
the  statute.  Thus,  if  A.  enfeoffed  B.  to  the  use  of  C,  in  trust 
for  D.,  the  statute  immediately  transferred  the  legal  estate  to 
C,  and  extinguished  all  interest  in  B.,  but  it  did  not  touch  or 
affect  the  use  or  trust  for  D.  It  had  been  settled  before  the 
statute,  as  a  rule  of  property,  that  a  use  could  not  be  raised 
upon  a  use.  At  law  such  use  raised  upon  a  use  was  simply 
void.  And  at  law  it  was  held  that  the  statute  extended  only 
to  execute  the  first  use  by  transferring  the  legal  estate  from 

B.  to  C,  and  that  all  its  powers  were  exhausted  in  that  act, 
and  thus  C.  held  a  legal  title  in  trust  or  for  the  use  of  D., 
which  the  statute  did  not  execute.^  And  although  C.  was 
bound  in  equity  and  good  conscience  to  give  to  D.  the  use  and 
enjoyment  of  the  estate,  there  was  no  remedy  for  D.  at  law, 
and  he  could  only  proceed  as  before  the  statute  by  subpoena 
in  chancery  to  compel  C.  to  perform  the  trust.  Again,  if  A. 
conveyed  land  to  B.  for  a  term  of  years  for  the  use  of  C,  the 
statute  did  not  execute  the  legal  title  in  C,  for  it  was  held, 
under  tlie  words  of  the  statute,  that  it  only  executed  the  legal 
titles  of  estates  of  which  the  first  taker  was  seized,  and  that 
according  to  the  use  of  tlie  words  in  the  law  no  one  could  be 
said  to  be  seized  of  a  term  of  years.     Thus  in  this  last  case 

C.  could  have  relief  only  by  subpoena  in  chancery.  And, 
again,  the  statute  did  not  execute  the  legal  title  to  the  cestui 
que  use,  if  the  first  taker  was  to  perform  any  active  duties  in 
regard  to  the  estate ;  as  if  he  was  to  hold  the  same  for  a 
certain  time,  or  if  he  was  to  improve  or  lease  the  same  and 
pay  over  the  rents  and  profits  to  the  use  of  C,  the  statute 
left  the  estate  where  it  was  before,  and  C.  had  no  redress  for 

1  Reid  V.  Gordon,  35  Md.  183;  Croxall  v.  Shererd,  5  Wall.  268;  Mat- 
thews V.  Ward,  10  G.  &  J.  443. 

6 


§  8.]  INTRODUCTION.  [CHAP.  I. 

any  abuse  of  the  trust  or  use  except  by  subpoena  in  chancery. 
And,  further,  the  statute  did  not  apply  at  all  to  personal  chat- 
tels given  to  one  for  the  use  and  benefit  of  another.  In  these 
four  cases  the  parties  beneficially  interested  in  the  property, 
and  equitably  owning  the  whole  of  it,  had  no  remedy  at  law  for 
any  withholding  of  their  rights.  The  Court  of  Chancery  laid 
hold  of  these  four  instances  of  a  want  of  redress  at  law,  and 
by  its  writ  of  subpoena  compelled  the  performance  of  these 
four  uses  under  the  name  of  trusts.  The  legislation  of  our 
States  now  recognizes  trusts,  and  provisions  and  rules  are 
made  for  their  creation,  regulation,  and  duration,  and  in  some 
States  for  their  administration ;  but  they  are  still  left  to  the 
exclusive  cognizance  and  jurisdiction  of  caurts  of  equity,  or  to 
the  equity  powers  of  the  common-law  courts. 

§  7.  Thus  interests  in  land  became  of  three  kinds  :  first,  the 
estate  in  the  land  itself,  the  old  common-law  fee ;  secondly, 
the  use,  which  was  originally  a  creature  of  equity,  but  after 
the  statute  of  uses  it  drew  the  estate  in  the  land  to  itself,  so 
that  the  fee  and  use  were  joined  and  made  but  one  legal 
estate,  not  differing  from  the  old  common-law  fee  except  in 
the  manner  of  its  creation  ;  and,  thirdly,  the  trust  of  which 
the  common  law  takes  no  notice,  but  which  in  a  court  of 
equity  carried  the  beneficial  interest  and  profits,  and  is  still  a 
creature  of  that  court,  as  the  use  was  before  the  statute.^ 
The  statute  of  uses  has  never  been  repealed,  and  is  still  in 
force  in  many  of  the  United  States,  so  that  if  a  trust  should 
now  be  created  in  such  form  that  the  statute  would  have  exe- 
cuted it  if  it  had  been  a  use,  the  statute  will  now  execute  the 
trust  by  giving  the  cestui  que  trust  the  legal  title  as  well  as 
the  equitable  without  any  action  on  the  part  of  the  trustee.^ 

§  8.  It  is  thus  seen  that  our  present  trusts  are  almost  iden- 
tical with  the  old  uses.^     Of  course  the  growth  of  this  system 

1  Per  Lord  Hardwicke,  in  Willet  v.  Sandford,  1  Ves.  186;  Coryton  v. 
Helyar,  2  Cox,  342. 

2  Shep.  Touch.  508;  post,  §  296. 

8  Penny  v.  Allen,  7  De  G.,  M.  &  G.  422. 

6 


CHAP.  I.]  HISTORY   OP   TRUSTS.  [§  9. 

of  jurisprudence  has  been  slow  and  gradual,  and  it  has  some- 
timas  fallen  into  inconsistencies  and  absurdities ;  but  the 
abilities  of  upright  and  wise  chancellors,  aided  by  a  learned 
and  watchful  profession,  have  finally  given  a  regular  and 
simple  form  to  the  administration  of  trusts.  Lord  Chief 
Justice  Mansfield  observed  that  in  his  opinion  "  trusts  were 
not  on  a  true  foundation  until  Lord  Nottingham  held  the 
great  seal.  By  steadily  pursuing  from  plain  principles  trusts 
in  all  their  consequences,  and  by  some  assistance  from  the 
legislature,  a  noble,  rational,  and  uniform  system  of  law  has 
since  been  raised.  Trusts  are  made  to  answer  the  exigencies 
of  families,  and  all  other  purposes,  without  producing  one 
of  the  inconveniences,  frauds,  or  private  mischiefs  which  the 
statute  of  Henry  VIII.  c.  10,  was  intended  to  avoid.  The 
forum  where  they  are  adjudged  is  the  only  difference  between 
trusts  and  legal  estates."  ^  During  the  development  of  this 
system  a  vast  number  of  distinctions  and  subtleties  have  been 
established  and  exploded.  It  is  not  necessary  to  follow  them, 
as  many  of  them  never  obtained  a  foothold  in  America.^ 

§  9.  Lord  Nottingham  became  chancellor  in  1673 ;  conse- 
quently, when  America  was  first  settled,  the  doctrine  of  trusts 
had  not  been  reduced  to  a  system.  Nor  was  there  occasion 
for  many  years  to  apply  the  doctrine  to  the  affairs  of  the 
colonists.  Lands  were  abundant  and  cheap,  and  could  be  had 
by  the  taking  ;  personal  property  had  not  accumulated  ;  habits 
of  life  were  simple  and  industrious ;  and  there  was  little 
occasion  for  family  or  other  settlements  that  rendered  the 
intervention  of  a  trustee  either  convenient  or  necessary.  The 
statute  of  uses  was  passed  before  the  colonists  left  England, 
and  it  became  a  part  of  the  law  of  many,  if  not  all  the  colo- 
nies. The  system  of  trusts  which  grew  upon  the  statute  of 
uses  was  adopted  in  America  much  later.  Even  in  England 
the  development  of  the  equitable  jurisdiction  of  chancery  met 
with  great  opposition,  upon  the  ground,  among  others,  that  it 

^  Burgess  r.  Wheate,  1  Eden,  223 ;  Philips  v.  Brydges,  3  Ves.  127 ;  Kemp 
V.  Kemp,  .5  Ves.  858. 

2  See  them  stated  in  Lewin  on  Trusts,  pp.  2-17. 


§  10.]  INTRODUCTION.  [CHAP.  I. 

subjected  the  laws  of  the  realm  to  the  arbitrary  discretion  of 
one  man,  or  "  made  the  rights  of  the  subject  depend  upon  the 
length  of  the  chancellor's  foot."  Considering  this  opposition 
to  the  equity  jurisdiction  of  the  Court  of  Chancery  in  England, 
considering  that  trusts  were  not  established  upon  a  reasonable 
foundation  when  the  colonists  left  England,  and  considering 
the  pecuniary  condition  of  America,  it  is  not  surprising  that  it 
was  long  before  the  system  received  any  countenance  here. 

§  10.  Mr.  Story  says  that  there  was  no  equity  jurisdiction 
in  any  State  prior  to  the  Revolution,  or  at  least  a  very  imper- 
fect and  irregular  administration  of  it.^  There  was  an  at- 
tempt to  create  such  a  jurisdiction  in  the  province  of  New 
York  in  the  governor  and  council ;  but  it  was  so  unpopular  ^ 
that  it  did  little  or  no  business.  A  court  was  established  in 
Massachusetts  in  1692,  with  full  equity  powers ;  but  the  act 
failed  to  receive  the  approval  of  the  king  in  council.^  In  1720 
a  Court  of  Chancery  was  established  in  Pennsylvania,  and 
continued  to  administer  a  jurisdiction  in  equity  in  a  separate 
court  until  1736.  And  it  is  probable  that  some  of  the  princi- 
ples of  equity  were  administered  in  the  common-law  courts  of 
all  the  colonies,  in  order  to  relieve  suitors  from  hardships 
which  the  stricter  rules  of  the  common  law  were  unable  to 
effect.  In  New  York,  New  Jersey,  Virginia,  Pennsylvania, 
and  South  Carolina,  the  governor  of  the  province  was  clothed 
with  the  power  and  duty  of  the  chancellor.*  Since  the  Revo- 
lution, equity  jurisdiction  as  a  system  has  been  of  slow  growth, 
and  it  is  only  since  the  beginning  of  this  century  that  it  has 
received  its  present  development  in  America.  As  property 
has  increased,  and  pecuniary  affairs  have  become  complex, 
and  it  has  become  necessary  or  convenient  to  make  marriage 
settlements,  or  settlements  upon  families,  children,  relations, 

»  1  Story,  Eq.  Jur.  §  56;  1  Dane.  Ab.  c.  1,  art.  7,  §  51;  7  Dane,  Ab. 
c.  225,  arts.  1,  2;  2  Swift's  Dig.  15;  3  Tuck.  Black.  App.  7. 

'■2  1  John.  Ch.,  Preface. 

8  Ancient  Char.  c.  222 ;  1  Story,  Eq.  Jur.  §  56. 

*  See  Equity  in  Pennsylvania,  a  Lecture  by  William  H.  Rawle,  Esq., 
McKay  &  Brother,  Philadelphia,  1869. 

8 


CHAP.  I.]  HISTORY    OF    TRUSTS.  [§  12. 

or  dependants,  and  upon  charities,  the  English  system  of 
trusts,  fully  grown,  has  been  introduced  into  most  of  the 
States,  and  they  have  conferred  full  equity  powers  either 
upon  their  common-law  courts,  or  they  have  established  sepa- 
rate courts  with  an  equity  jurisdiction  very  similar  to  the 
jurisdiction  of  the  Lord  Chancellor  in  the  High  Court  of 
Chancery  in  England.^ 

§  11.  Mr.  Story  further  observes  that  it  is  a  favorable  cir- 
cumstance that  jurisdiction  in  equity  was  conferred  upon  the 
courts  in  America  at  so  late  a  period,  and  therefore  they  did 
not  become  acquainted  with  the  system  until  it  had  been 
settled  upon  a  broad  and  rational  foundation  ;2  thus  they 
were  saved  from  crude  and  unintelligent  opinions  and  judg- 
ments, which  must  have  been  given  in  the  then  condition  of 
the  law  in  England,  and  of  the  profession  in  America.  These 
judgments  must  of  necessity  have  formed  a  body  of  precedents 
which  would  have  continued  to  plague  the  profession  and  the 
courts,  and  would  have  marred  the  symmetry  of  the  system. 
As  now  established,  the  doctrine  of  equity  and  of  trusts  in 
the  United  States  is  a  well-formed  system ;  and  Mr.  Story 
thinks  it  even  more  symmetrical  than  the  original  system  in 
England. 

§  12.  It  is  not  the  purpose  of  this  treatise  to  trace  the  rise 
and  growth  of  the  law  of  trusts  in  each  one  of  the  States.  It 
is,  on  the  other  hand,  its  purpose  to  state  the  general  prin- 
ciples which  prevail  in  all  the  States.  It  is  not  possible  to 
know  or  to  state  the  legislation  of  so  many  States  upon  the 
various  matters  connected  with  the  administration  of  trusts. 
The  intelligent  lawyer  must  do  this  for  himself,  when  the 
questions  before  him  depend  upon  the  statutes  of  his  State 
rather  than  upon  the  general  principles  common  to  all  the 
Statcs.3 

^  1  Story,  Eq.  Jur.  §  56,  and  notes. 

2  1  Story,  Eq.  Jur.  §  58. 

2  See  4  Kent,  Com.  163,  and  notes.  See  Preface  to  Campbell  and  Cam- 
breleng's  Amer.  Chan.  Dig.  (1828);  1  Fonb.  Eq.  11-20,  by  Laussat,  1831; 
1  Amer.  Jurist,  314. 

9 


§  13.]  INTRODUCTION.  [CHAP.  I. 

§  13.  Sir  Edward  Coke's  definition  of  a  use  has  been  adopted 
as  an  accurate  legal  description  and  definition  of  a  trust.  In 
liis  words  applied  to  a  use,  "  a  trust  is  a  confidence  reposed  in 
some  other,  not  issuing  out  of  the  land,  but  as  a  thing  collat- 
eral, annexed  in  privity  to  the  estate  of  the  land,  and  to  the 
person  touching  the  land,  for  which  cestui  que  trust  has  no 
remedy  but  by  subpoena  in  chancery."  ^  The  confidence  here 
spoken  of  need  not  be  expressly  reposed  by  one  party  in  an- 
other, for  the  law  frequently  implies  or  construes  it  to  arise 
out  of  transactions  between  parties,  when  neither  party  sup- 
posed at  the  time  that  a  trust  was  created  between  them. 
The  trust  or  confidence  is  a  thing  distinguished  from  legal 
property,  or  legal  right  to  property.  It  is  neither  jus  in  re 
nor  jus  ad  rem^  and  so  the  confidence  may  not  always  be  re- 
posed by  a  person  other  than  the  trustee,  for  any  person  may 
convert  himself  into  a  trustee,  and  give  from  his  own  acts  an 
equitable  right  to  another  person,  as  cestui  que  trust.  But  no 
person  can  be  both  trustee  and  cestui  que  trust  at  the  same 
time,  for  no  person  can  sue  a  subpoena  against  himself.  There- 
fore, if  an  equitable  estate  and  a  legal  estate  meet  in  the  same 
person,  the  trust  or  confidence  is  extinguished,  for  the  equi- 
table estate  merges  in  the  legal  estate.  As  when  a  father 
holds  the  legal  title  to  land  in  trust  for  an  only  child,  and  the 
father  dies,  such  legal  title  descends  to  the  child  as  only  heir, 
and  thus  both  estates  meet  in  the  same  person.^  But  both 
estates  must  be  commensurate  with  each  other,  otherwise 
there  can  be  no  merger.^ 

^  Co.  Litt.  272  b.  A  trust  exists  where  the  legal  interest  is  in  one 
person,  and  the  equitable  interest  in  another.  Wallace  v.  Wainwright, 
87  Pa.  St.  263. 

2  Wainewright  v.  Elwell,  1  Mad.  336,  Bac.  Uses,  5. 

3  Goodright  v.  Wells,  Doug.  771 ;  Selby  v.  Alston,  3  Yes.  339;  Harwood 
V.  Oglander,  8  Ves.  127;  Philips  v.  Brydges,  3  Yes.  126;  Wade  v.  Paget, 
1  Bro.  Ch.  363;  1  Cox,  76;  Finch's  Case,  4  Inst.  85,  3d  Res.;  Creagh  v. 
Blood,  3  Jo.  &  La.  133.  So  where  one  of  the  beneficiaries  is  also  trustee, 
to  the  extent  of  such  tru.stee's  personal  interest.  BoUes  v.  State  Trust 
Co.,  27  N.  J.  Eq.  308. 

4  Philips  V.  Brydges,  3  Yes.  125;  Robinson  v.  Cuming,  T.  Talb.  164, 
1  Atk.  473;  Boteler  v.  Allington,  1  Bro.   Ch.  72;  Kendal  v.   Micfeild, 

10 


CHAP.  L]  definition   OP  TRUSTS.  [§  15. 

§  14,  Again,  a  trust  or  confidence  is  something  collateral 
to  the  land,  and  not  part  or  parcel  of  it.  Thus  a  charge,  an 
incumbrance,  or  a  term  of  years  is  a  legal  title  in,  or  issuing 
out  of,  the  land  itself,  and  binds  every  person,  however  he  may 
come  into  possession  of  the  estate.  The  trust  or  confidence 
is  an  incident  to  the  land,  and  so  far  collateral  that  it  does 
not  go  inseparably  with  it.  Thus  it  only  charges  those  who 
are  privy  in  the  estate.  If  the  trustee  is  disseized,  or  if  he  is 
turned  out  of  the  possession  by  a  person  holding  a  paramount 
title,  the  disseizor  is  not  bound  by  the  trust  or  confidence, 
because  there  is  no  privity  of  estate  between  a  disseizor  and 
disseizee.  And  so  there  must  be  privity  between  the  persons 
to  be  bound  by  the  trust ;  as,  if  a  trustee  dies,  the  legal  estate 
will  descend  to  his  heir,  who  will  be  bound  by  the  trust,  be- 
cause there  is  both  privity  of  estate  and  of  person  in  such  a 
case.  And  so  if  the  trustee  sell  the  estate  to  a  purchaser 
with  full  notice  of  the  trust  or  confidence,  or  if  he  transfer  the 
estate  to  a  volunteer  without  consideration,  the  estate  and 
the  persons  to  whom  it  comes  in  such  manner  will  be  bound 
by  the  trust,  because  there  is  both  privity  of  estate  and  of 
persons.  But  if  the  trustee  sells  the  estate  to  a  third  person 
for  a  valuable  consideration,  without  notice  of  the  trust, 
neither  the  estate  nor  the  purchaser  for  value  and  without 
notice  will  be  bound  by  the  trust,  for  there  is  in  such  case  no 
privity  between  the  persons.^ 

§  15.  All  those  persons  who  tak-e  under  the  trustee  by  oper- 
ation of  law  are  privies,  both  in  estate  and  in  person,  to  the 
trustee.  Thus  those  who  take  as  heirs  under  the  trustee,  or 
as  tenants  in  dower  or  curtesy,  or  by  extent  of  an  execution,^ 
or  by  an  assignment  in  insolvency  or  bankruptcy,  are  bound 
by  the  trust.     It  has  been  thought  that  a  lord,  who  takes  by 

Barn.  47;  Buchanan  v.  Harrison,  1  John.  &  Hem.  662;  Habergham  v. 
Vincent,  2  Ves.  Jr.  204;  Merest  v.  James,  6  Mad.  118;  Canning w.  Hicks, 
2  Ch.  Ca.  187,  1  Vern.  412 ;  Tabor  v.  Grover,  2  Vern.  367,  1  Eq.  Ca.  Ab. 
328;  Clerkson  v.  Bowyer,  2  Vern.  66,  193. 

1  Finch's  Case,  4  Inst.  85,  1st  Res  ;  Gilbert  on  Uses,  429. 

2  Leake  v.  Leake,  5  Ir.  Eq.  3G6. 

11 


§  17.]  INTRODUCTION.  [CHAP.  I. 

an  escheat  or  by  a  title  paramount,  would  not  be  bound  by 
the  trust;  but  the  point  has  not  been  adjudged.^ 

§  16.  The  doctrines  of  trusts  are  equally  applicable  to  real 
and  personal  estate,  and  the  same  rules  will  govern  trusts  in 
both  kinds  of  property. 

§  17.  The  cestui  que  trust  has  no  remedy  except  by  subpoena 
in  chancery ;  that  is,  in  some  court  with  an  equity  jurisdiction, 
adequate  to  decree  relief.^  The  cestui  que  trust  cannot  main- 
tain a  real  action  upon  his  equitable  title,  but  such  action 
must  be  brought  in  the  name  of  the  trustee.^  There  is,  how- 
ever, this  exception,  the  cestui  que  trust  may  maintain  a  real 
action  upon  his  equitable  title  against  a  stranger  who  shows 
no  title,  or  no  title  under  the  trustee.*  But  the  trustee  may 
successfully  defend  the  legal  title  against  a  suit  at  common 
law  by  the  cestui  que  trust  unless  the  trust  has  ceased,  or  the 
trustee  is  enjoined  by  a  court  of  equity.^  And  so  the  grantee 
of  the  trustee  can  defend  such  action,  even  though  the  grant 
may  be  a  breach  of  trust.^      At  one  time  the  common-law 

1  Burgess  v.  Wheate,  1  Eden,  203. 

2  Sturt  V.  Mellish,  2  Atk.  612;  Allen  v.  Imlett,  Holt,  641;  Holland's 
Case,  Styl.  41;  Queen  v.  Orton,  14  Q.  B.  139;  Vanderstegen  v.  Witham, 
6  M.  &  W.  457;  Bond  v.  Nurse,  10  Q.  B.  244;  Edwards  v.  Lowndes,  1 
El.  &  Bl.  81;  Drake  v.  Pywall,  1  H.  &  C.  78;  Miller's  Case,  Freem.  283 
AVitfcer  v.  Witter,  3  P.  Wms.  102;  King  v.  Jenkins,  3  Dow.  &  R.  41 
Edwards  v.  Graves,  Hob.  265;  Farringtou  v.  Knightly,  1  P.  Wms.  549 
McCartney  v.  Bostwick,  32  N.  Y.  33;  Dorsey  v.  Garcey,  30  Md.  489. 

3  Davis  V.  Charles  River  R.  Co.,  11  Cush.  506;  Raymond  v.  Holden, 
2  Cush.  268;  Chapin  v.  Universalist  Soc,  8  Gray,  581;  Crane  v.  Crane, 
4  Gray,  323;  Fitzpatrick  v.  Fitzgerald,  13  Gray,  400;  Baptist  Soc.  v. 
Hazen,  100  Mass.  322;  Mordecai  v.  Parker,  3  Dev.  425;  Cox  v.  Walker, 
26  Me.  504 ;  Matthews  v.  Ward,  10  G.  &  J.  443 ;  Beach  v.  Beach,  14  Vt. 
28;  Wright  v.  Douglass,  3  Barb.  (S.  C.)  559;  Moore  v.  Burnet,  11  Ohio, 
334;  Hopkins  v.  Ward,  6  Munf.  38;  Daggett  v.  Hart,  5  Fla.  215;  Good- 
title  V.  Jones,  7  T.  R.  47. 

*  Stearns  ?'.  Palmer,  10  Met.  35;  Queen  v.  Abrahams,  4  Q.  B.  157; 
Roper  V.  Holland,  3  Ad.  &  EI.  99;  Sloper  v.  Cottrell,  2  Jur.  n.  s.  1046. 

6  Obert  V.  Bordine,  1  Spencer,  394;  Nicoll  v.  Walworth,  4  Denio,  385; 
Stearns  v.  Palmer,  10  Met.  35. 

«  Stearns  v.  Palmer,  10  Met.  35;  Canoy  v.  Troutman,  7  Ired.  155;  Tay- 
lor V.  King,  6  Munf.  358 ;  Reece  v.  Allen,  5  Gilm.  241. 
12 


CHAP.  I.]  CLASSIFICATION   OF   TRUSTS.  [§  18. 

courts  attempted  to  punish  trustees  for  a  breach  of  trust  in 
damages,  as  upon  an  implied  contract/  but  the  exercise  of 
such  an  authority  was  soon  abandoned.^  And  the  rule  of 
confining  the  administration  of  trusts  to  the  courts  of  equity 
has  been  carried  so  far  that  the  Court  of  King's  Bench  may 
issue  prohibitions,  forbidding  spiritual  courts  from  inter- 
meddling with  a  trust.^  But  a  bill  in  equity  cannot  be 
maintained  simply  to  establish  the  fact  of  a  trust,  no  other 
relief  being  sought,  even  where  its  existence  is  denied ;  if, 
however,  the  supposed  trustee  is  about  to  leave  the  juris- 
diction, so  that  no  relief  could  be  obtained,  the  court  will 
entertain  the  bill,  and  declare  the  trust  if  proved,  and  re- 
tain the  bill  for  further  action.*  In  Pennsylvania,  ejectment 
is  an  equitable  action,  and  may  be  maintained  by  the  cestui 
que  trust,  even  against  the  trustee,  when  the  former  is  entitled 
to  the  possession.^ 

§  18.  Trusts  are  divided  into  simple  and  special  trusts.  A 
simple  trust  is  a  simple  conveyance  of  property  to  one  upon 
trust  for  another,  without  further  specifications  or  directions. 
In  such  case  the  law  regulates  the  trust,  and  the  cestui  que 
trust  has  the  right  of  possession  and  of  disposing  of  the  prop- 
erty, and  he  may  call  upon  the  trustee  to  execute  such  con- 
veyances of  the  legal  estate  as  are  necessary.  A  special  trust 
is  where  special  and  particular  duties  are  pointed  out  to  be 
performed  by  the  trustee.  In  such  cases  he  is  not  a  mere 
passive  agent,  but  he  has  active  duties  to  perform,  as  when 
an  estate  is  given  to  a  person  to  sell,  and  from  the  proceeds 
to  pay  the  debts  of  the  settlor. 

1  Megod's  Case,  Godb.  64;  Jevon  v.  Bush,  1  Vern.  344;  Smith  v. 
Jameson,  5  T.  R.  603,  1  Eq.  Ca   Ab.  384,  D.  A. 

2  Barnadiston  v.  Soame,  7  St.  Trials,  443;  Sturt  v.  Mellish,  2  Atk.  612; 
Holland's  Case,  Styl.  41;  Allen  v.  Imlett,  Holt,  14;  Burnett?;.  Preston, 
17  Ind.  291. 

8  Petit  V.  Smith,  1  P.  Wras.  7;  Edwards  v.  Freeman,  2  P.  Wms.  441; 
Barker  v.  May,  4  M.  &  R.  386;  Ex  parte  Jenkins,  1  B.  &  C.  655. 

^  Baylies  v.  Payson,  5  Allen,  473;  Price  v.  Minot,  107  Mass.  62. 

5  Kennedy  v.  Fury,  1  Dall.  76;  Presbyterian  Cong.  v.  Johnston,  1  W. 
&  S.  56;  School,  &c.  v.  Dunkleberger,  6  Barr,  29. 

13 


§  20.]  INTRODUCTION.  [CHAP.  I. 

§  19.  Trusts  have  been  further  divided  into  ministerial  and 
diner et'ionarij  trusts.  A  trust  to  do  a  simple  act,  as  to  con- 
vey to  the  cestui  que  trust,  at  his  request,  is  a  ministerial  trust, 
as  it  is  a  mere  ministerial  or  instrumental  act  requiring  the 
exercise  of  no  judgment  or  discretion ;  but  if  a  choice  of  time, 
manner,  or  place  is  given  to  the  trustee,  or  if  he  must  use 
his  best  judgment  in  the  execution  of  the  trust,  it  is  a  discre- 
tioyiary  trust. ^  Mr.  Fearne  contends  that  a  trust  to  sell  is  a 
ministerial  trust,  for  the  price  is  not  arbitrary,  nor  at  the 
trustee's  discretion,  but  is  to  be  the  best  that  can  be  ob- 
tained ;2  but  Mr.  Lewin  insists  that  it  is  a  discretionary  trust, 
as  there  is  much  room  for  judgment  in  the  proceeding,^  and  it 
may  be  added  that  there  is  room  for  skill  in  procuring  the 
best  possible  price.  But  the  distinction  is  not  very  impor- 
tant, as  the  duties  of  a  trustee  for  sale  are  the  same,  whether 
the  trust  is  called  ministerial  or  discretionary. 

§  20.  There  is  a  mixed  trust  and  power,  as  where  the 
settlor  sketches  the  outline  of  a  trust  and  leaves  the  details 
to  be  settled  and  carried  into  effect,  according  to  the  best 
judgment  of  his  trustees.  The  power  joined  to  the  trust  in 
such  case  is  imperative  and  must  be  exercised ;  but  the  mode 
of  its  execution  is  a  matter  of  judgment  and  discretionary/. 
But  this  kind  of  trust  and  power  is  not  to  be  confounded 
with  a  trust  to  ivhich  a  power  is  annexed.  In  this  case  the 
trust  is  complete  in  itself,  and  the  power  is  a  simple  addition, 
which  may  or  may  not  be  exercised,  as  the  trustee  shall 
choose,  as  where  lands  are  given  to  trustees  for  a  particular 
purpose,  and  a  power  of  sale,  or  of  changing  the  securities,  is 
added;  the  power  is  no  part  of  the  trust,  but  it  is  something 
collateral,  which  the  court  cannot  compel  the  trustee  to  per- 

1  Attorney-General  v.  Gleg,  1  Atk.  356;  Cole  v.  Wade,  16  Ves.  27; 
Gower  v.  Main  waring,  2  Ves.  87;  Hibbard  r.  Lamb,  Amb  309,  Potter  v. 
Chapman,  Amb.  98;  Attorney- General  v.  Scott,  1  Ves  413.  4  Kent,  Com. 
304,  30.3. 

2  Fearne's  P.  W.  313. 

8  Lewin  on  Trusts,  19 :  King  v.  Bellord,  1  Hem.  &  Mil.  343 ,  Robson 
V.  Flight,  5  N.  R.  344;  4  De  G.,  J.  &  S.  608;  Clarke  v.  Royal  Panopticon, 
4  Drew.  29.  ^ 

14 


CHAP.  I.]  CLASSIFICATION   OP   TRUSTS.  [§  23. 

form.     But  a  trust  to  distribute  the  trust  fund  according  to  the 
discretion  of  the  trustee  is  an  imperative  trust  and  power.^ 

§  21.  Trusts  are  also  said  to  be  legal  or  illegal.  Trusts  are 
legal  when  they  are  for  some  honest  purpose,  as  to  pay  debts 
or  make  a  provision  for  families.  They  are  illegal  when  they 
are  for  purposes  of  immorality,  or  vice,  or  of  defrauding  cred- 
itors, or  contravene  some  statute,  or  arc  contrary  to  public 
})olicy.  In  such  case  a  court  of  equity  will  not  give  its  aid  in 
carrying  them  into  execution.^ 

§  22.  Again,  trusts  are  either  public  or  private.  Private 
trusts  concern  only  individuals  or  families,  for  private  con- 
venience and  support.  Public  trusts  are  for  public  charities 
or  for  the  general  public  good.  They  concern  the  general 
and  indefinite  public. 

§  23.  Private  trusts  which  concern  individuals  are  limited 
in  their  duration.  Being  for  individuals,  they  must  be  cer- 
tain, and  the  individual  or  individuals  must  be  identified  within 
a  limited  period.  They  can  endure  only  for  a  life  or  lives  ^ 
in  being,  and  twenty-one  years  and  the  period  of  gestation  in 
addition.*  On  the  other  hand,  public  trusts  or  charities,  ex- 
isting for  the  general  and  indefinite  public,  may  continue  for 
an  indefinite  period.^  It  must  be  kept  in  mind,  however,  that 
this  rule  against  perpetuities  only  applies  to  cases  in  which 
the  power  of  alienation  is  suspended,  and  that  the  creation  of 
a  trust  does  not  necessarily  result  in  such  suspension,  for  the 
trustee  may  have  the  right  to  alienate,^  and  that  the  terms 

1  Cole  V  Wade,  16  Ves.  43;  Gower  v.  Mainwaring,  2  Ves.  89;  Steere 
V.  Steere,  5  John.  Ch.  1. 

2  Bacon  on  Uses,  9 ;  Lewis  v.  Nelson,  1  INIcCarter,  94. 

3  It  is  immaterial  whether  the  designated  lives  are  those  of  the  bene- 
ficiaries or  others.     Crooke  v.  King's  County,  97  N.  Y.  421. 

^  Rice  V   Barrett,  102  N.  Y.  161. 

?  Christ's  Hospital  v.  Grainger,  1  Mac.  &  G.  460;  Attorney- General  v. 
Aspinall,  2  M  &  Cr.  622;  Attorney-General  v.  Heelis,  2  S.  &  S.  76;  At- 
torney-General V.  Shrewsbury,  6  Beav.  220 ;  Walker  v.  Richardson,  2  M. 
&  W.  892.  See  Attorney-General  v.  Forster,  10  Ves.  344;  Attorney- 
General  V.  Newcombe,  14  Ves.  1 ;  Fearon  v.  Webb,  14  Ves.  19. 

6  Robert  v.  Corning,  89  N.  Y.  225. 

15 


§  27.]  INTRODUCTION.  [CHAP.  I. 

of  the  law  are  not  everywhere  the  same.  For  example,  in 
New  York  the  ownership  of  j^ersonal  property  cannot  be  sus- 
pended for  more  than  two  lives,  while  the  alienation  of  real 
estate  may  be  suspended  for  two  lives  and  a  minority.^ 

§  24.  Trusts  are  divided  in  reference  to  their  creation  into 
express  trusts,  implied,  trusts,  resulting  trusts,  and  construc- 
tive trusts.^  Express  trusts  are  also  called  direct  trusts. 
They  are  generally  created  by  instruments  that  point  out 
directly  and  expressly  the  property,  persons,  and  purposes  of 
the  trust ;  hence  they  are  called  direct  or  express  trusts  in 
contradistinction  from  those  trusts  that  are  implied,  presumed, 
or  construed  by  law  to  arise  out  of  the  transactions  of  parties. 
They  may  be  discretionary  or  imperative,  absolute  or  on  con- 
dition.^ As  express  trusts  are  directly  declared  by  the  par- 
ties, there  can  never  be  a  controversy  whether  they  exist  or 
not.  In  such  trusts  these  questions  arise  :  Are  they  legal  or 
illegal,  and  what  is  the  construction  of  the  various  terms  and 
provisions  which  they  contain  ? 

§  25.  Implied  trusts  are  trusts  that  the  courts  imply  from 
the  words  of  an  instrument,  where  no  express  trust  is  de- 
clared, but  such  words  are  used  that  the  court  infers  or  im- 
plies that  it  was  the  purpose  or  intention  of  the  parties  to 
create  a  trust. 

§  26.  Resulting  trusts  are  trusts  that  the  courts  presume 
to  arise  out  of  the  transactions  of  parties,  as  if  one  man  pays 
the  purchase-money  for  an  estate,  and  the  deed  is  taken  in 
the  name  of  another.  Courts  presume  that  a  trust  is  in- 
tended for  the  person  who  pays  the  money. 

§  27.  A  constructive  trust  is  one  that  arises  when  a  person, 
clothed  with  some  fiduciary  character,  by  fraud  or  otherwise 
gains  some  advantage  to  himself.  Courts  construe  this  to  be 
an  advantage  for  the  cestui  que  trust  or  a  constructive  trust. 

1  Cook  V.  Lowry,  29  Hun,  28. 

2  See  the  definitions  in  Russell  v.  Peyton,  4  Brad.  (111.)  473. 
8  Little  V.  Wilcox,  119  Pa.  St.  439. 

16 


CHAP.  II.]  PARTIES  TO  TRUSTS,  ETC. 


CHAPTER  II. 

PARTIES    TO   TRUSTS;     AND   WHAT   PROPERTY   MAY    BE   THE 
SUBJECT   OP   A   TRUST. 

I.  §§  28-37.   Who  may  create  a  trust. 

§  28.  All  persons  competent  to  contract  or  make  wills  may  create  trusts. 

§  29.  The  king  ma}'  create  trusts. 

§  30.  The  State  may  create  trusts;  and  so  may  all  its  officers. 

§  31.  Corporations  may  create  trusts. 

§  32.  The  power  of  married  women  to  create  trusts. 

§  33.  Capacity  and  power  of  infants  to  create  trusts. 

§  34.  The  marriage  settlements  of  infants. 

§  35.  Of  the  abilitj'  of  lunatics  to  create  trusts. 

§  36.  Of  conveyances  in  trust  by  aliens. 

§  37.  Trusts  by  bankrupts  and  insolvents. 

II.  §§  38-59.    Who  may  be  a  trustee. 

§  38.  A  person  may  convert  himself  into  a  trustee. 

§  39.  Any  person  capable  of  taking  the  legal  title  may  take  as  trustee. 
Rules  that  govern  courts  in  appointing  trustees. 

§  40.  The  sovereign  ma}-  be  trustee.     Question  as  to  remedy. 

§  41.  The  United  States  and  the  several  States  may  be  trustees. 

§§  42-45.  Corporations  may  be  trustees. 

§  40.  Unincorporated  societies  maj-  be  trustees  for  charitable  purposes. 

§  47.  Public  ofHcers  as  trustees. 

§§  48-51.  Married  women  as  trustees. 

§§  52-54.  Infants  as  trustees. 

§  55.  Aliens  as  trustees. 

§  56.  Lunatics  as  trustees. 

§  57.  A  religious  person  or  nun  as  trustee. 

§  58.  A  bankrupt  as  trustee. 

§  59.  Cestui  que  trust  may  be  a  trustee  for  himself  and  others. 

III.  §§  80-66.   Who  may  be  cestui  que  trust. 

§  00.  All  persons  may  be  cesfuis  que  trust  who  may  take  the  legal  title. 

§§  61,  62.  The  Crown  and  the  State  may  be  cesluis  que  trust. 

§  63.  Corporations  as  cestuis  que  trust. 

§  64.  Aliens  as  cestuis  que  trust. 

§  65.  Those  who  cannot  take  a  legal  interest  cannot  take  an  equitable 

interest. 

§  06.  Except  in  certain  charitable  trusts. 

IV.  §§  67-72.   What  jiroperty  may  be  the  subject  of  a  trust. 

§  67.  A  trust  may  be  created  in  every  kind  of  valuable  property. 

VOL.  I.  — 2  ij 


§  30.]  PARTIES  TO  TRUSTS,  ETC.  [CHAP.  II. 

§  68.  Possibilities,  choses  in  action,  expectancies,  and  property  not  at  the 

time  ill  esse  may  be  assigned  in  trust. 
§  69.  Choses  in  action  and  expectancies  that  cannot  be  assigned  in  trust. 

§§  71,  72.  Trusts  in  land  lying  in  a  foreign  jurisdiction,  and  their  adminis- 

tration. 

I.    Who  may  create  a  Trust. 

§  28.  It  may  be  stated,  as  a  general  proposition,  that  every- 
one competent  to  enter  into  a  contract,  or  to  make  a  will,  or 
to  deal  with  the  legal  title  to  property,  may  make  such  dis- 
position of  it  as  he  pleases ;  and  he  may  annex  such  condi- 
tions and  limitations  to  the  enjoyment  of  it  as  he  sees  fit ; 
and  he  may  vest  it  in  trustees  for  the  purpose  of  carrying  out 
his  intention.  All  persons,  sui  juris,  have  the  same  power 
to  create  trusts  that  they  have  to  make  a  disposition  of  their 
property.  A  conveyance  or  disposition  of  property  by  per- 
sons not  sui  juris  is  valid  to  the  extent  of  their  legal  capacity. 

§  29.  The  king  may,  by  charter,  grant  his  private  property 
to  one  person  upon  trust  for  another.^  But  the  trust  must 
appear  upon  the  face  of  the  patent,  and  cannot  be  proved  by 
parol.2  He  can  also  by  will  in  writing  under  the  sign-manual 
bequeath  his  private  personal  property  to  trustees  for  the  use 
of  another.^  He  may  by  warrant  grant  prizes  taken  in  war  to 
trustees,  to  be  distributed  among  the  captors,^  and  by  statute 
he  is  authorized  to  convey  trust  property  which  has  escheated 
to  the  Crown  to  trustees  to  execute  the  trust.^ 

§  30.  In  the  United  States  the  sovereignty  resides  in  the 
organized  people ;  and  all  public  officers  are  subjects  and 
citizens,  and  they  can  convey  their  private  property  to  trus- 
tees in  the  same  manner  as  private  individuals.      The  State 

^  Bacon  on  Uses,  66. 

2  Fordyce  v.  Willis,  3  Bro.  Ch.  577. 

3  39  &  40  Geo.  III.  c.  88.  But  it  is  said  that  probate  of  his  will  can- 
not be  granted.     Williams's  Ex'rs,  13. 

*  Alexander  v.  Duke  of  Wellington,  2  R.  &  M.  35;  Stevens  v.  Bag- 
well, 15  Ves.  140.  But  it  is  said  that  the  cestui  que  trust  cannot  maintain 
a  suit  against  the  trustees  in  such  cases. 

6  30  &  40  Geo.  III.  c.  88. 

18 


CHAP.  II.]  MARRIED    WOMEN.  [§  32, 

itself  by  its  legislation,  or  by  its  public  officers  duly  authorized, 
can  create  a  trust,  convey  property,  and  appoint  trustees  ;i 
and  such  trustees  are  equally  amenable  to  the  jurisdiction  of 
chancery .2  But  a  State  cannot  remove  the  trustees  of  a  pri- 
vate corporation  and  appoint  others  in  their  stead.^ 

§  31  All  corporations,  subject  to  the  terms  of  the  charters 
and  laws  under  which  they  exist,  may  alienate  their  property  ; 
and  their  power  to  appoint  trustees  and  to  declare  in  what 
manner  the  property  shall  be  enjoyed,  is  coextensive  with  the 
right  of  alienation.* 

§  32.  By  the  civil  law  married  women  could  alienate  their 
property  and  dispose  of  it  by  will.  By  the  common  law  they 
were  almost  wholly  incapacitated  from  dealing  with  their  es- 
tates. The  tendency  of  modern  legislation  is  to  remove  these 
disabilities,  and  to  enable  them  to  make  contracts  and  wills, 
as  if  they  were  sole,  in  relation  to  property  held  by  them  in 
their  own  right.  By  joining  their  husbands  in  fines  and 
recoveries  in  England,^  and  in  deeds  in  America  executed 
according  to  the  prescribed  formalities,  they  can,  as  a  general 
rule,  convey  their  property  to  trustees.^  In  those  States 
where  a  married  woman  can  convey  her  real   and  personal 

^  Commissioners  v.  Walker,  6  How.  (Miss.)  143. 

2  Cotterel  o.  Harapson,  2  Vern.  5;  Buchanan  v.  Hamilton,  5  Ves.  722. 

8  State  V.  Bryce,  7  Ohio,  414;  Dart.  Coll.  v.  Woodward,  4  Wheat.  .518. 

*  Colchester  v.  Lowten,  1  V.  &  B.  226;  Attorney-General  v.  Aspinall, 
2  M.  &  Cr.  613;  Attorney-General  ?'.  Wilson,  1  Cr.  &  Ph.  1,  Catlin  v. 
Eagle  Bank,  6  Conn.  233;  State  of  Maryland  v.  Bank  of  Maryland,  6  Gill 
&  J.  205;  Dana  v.  Bank  of  United  States,  5  W.  &  S  224;  Arthur  v. 
Comm.  Bank,  9  S.  &  M.  394,  Barry  w.  Merchants'  Exch.  Co.,  1  Sand. 
Ch.  280:  Hopkins  v.  Turnpike  Co.,  4  Humph.  403;  Reynolds  v.  Stark 
County,  5  Ham.  204;  Angell  on  Corp.  §191,  Barings  v.  Dabney,  19 
Wall.  1.  In  England,  municipal  corporations  are  declared  by  statute  to 
be  trustees  of  their  real  and  personal  estate,  and  they  are  debarred  from 
alienating  it  without  the  consent  of  the  Lords  of  the  Treasury.  5  &  6 
Wm.  IV.  0.  76,  §  94. 

6  3  &  4  Wm.  IV.  c.  74. 

«  Durant  r.  Ritchie,  4  Mason,  45.  And  they  can  make  mortgages  of 
their  property  with  powers  of  sale.     Young  v.  Graff,  28  111.  20. 

19 


§  32.]  PARTIES  TO  TRUSTS,  ETC.  [CHAP.  II. 

property  without  joining  her  husband,  she  can  convey  it  to  trus- 
tees to  such  uses  as  she  may  appoint ;  and  where  statutes  have 
given  her  a  testamentary  capacity,  she  can  create  trusts  and 
appoint  trustees  by  her  will.^  A  married  woman  is  considered 
in  all  respects  as  a  feme  sole  in  regard  to  property  settled  to 
her  separate  use;^  as  if  real  estate  is  conveyed  to  a  trustee 
and  his  heirs,  or  if  personal  estate  is  assigned  to  a  trustee 
and  his  executors,  for  her  sole  and  separate  use,  the  absolute 
interest  to  be  at  her  sole  disposal,  she  has  the  entire  control, 
and  may  exercise  her  ownership  or  implied  power  of  appoint- 
ment by  creating  a  trust  extending  even  beyond  her  covert- 
ure.^ If  she  is  tenant  for  life,  to  her  sole  use,  she  can  make  a 
settlement  of  her  life-estate.  But  if  the  power  of  anticipation 
is  restrained,  she  can  make  no  disposition  except  of  the  an- 
nual produce  which  has  actually  accrued  or  become  due.  A 
married  woman  will  be  treated  as  afeyne  sole  only  in  regard 
to  property  settled  upon  her  ;  and  her  power  of  disposing  of 
property  thus  settled  will  be  governed  by  a  strict  interpretation 
of  the  instrument  of  settlement.  If  the  deed  of  settlement 
points  out  the  manner  in  which  she  may  dispose  of  her  in- 
terest, she  must  follow  that  particular  manner ;  as  if  the 
power  is  given  her  to  convey  or  appoint  by  deed,  she  cannot 
convey  or  appoint  by  will ;  and  if  by  will,  she  cannot  convey 
by  deed.  If  the  instrument  is  silent  as  to  her  power  to  con- 
vey, she  may  devise  the  property  by  will.*  Savings  by  a  wife 
out  of  an  allowance  made  by  her  husband  for  her  separate 
maintenance  are  treated  in  equity  as  her  separate  estate, 
which  she  may  dispose  of  ;^  and  so  are  the  accumulations  and 
savings  from  the  income  of  a  trust  for  her  sole  benefit.^     But 

1  1  Redfield  on  Wills,  pp.  21-28. 

2  Lewin  on  Trusts,  j).  23  (5th  London  ed.),  Hill  on  Trustees,  p.  421 
(4th  Amer.  ed.). 

2  The  English  rule  is  stated  in  the  text.  The  courts  in  some  of  the 
United  States  follow  the  same  rule;  in  others,  a  different  rule  is  estab- 
lished. All  the  distinctions  are  stated,  and  the  authorities  collected  in  the 
chapter  upon  Trusts  for  Married  Women. 

4  Mory  V.  Michael,  18  Md.  227.  ^  Brooke  v.  Brooke,  2.5  Beav.  342. 

^  Story,  Eq.  Jur.  §  137.5;  Frazier  v.  Center,  1  McCord,  Eq.  270;  Pic- 
quet  V.  Swan,  i  Mason,  455. 

20 


CHAP.  II.]  INFANTS.  [§  34. 

savings  from  pin-money  allowed  by  the  husband  for  the  per- 
sonal expenses,  clothing,  and  adornment  of  the  wife,  revert  to 
the  husband,  and  tlie  wife  cannot  dispose  of  them.^ 

§  33.  Infants  can  create  trusts  which  are  good  until  they 
are  avoided.^  The  tendency  of  modern  decisions  is  to  hold 
that  the  acts  and  contracts  of  infants  are  voidable  only,  and 
subject  to  their  election  when  of  age  either  to  avoid  or  con- 
firm them.^  Mr.  Greenleaf  says  that  "  it  may  be  safely  stated 
as  the  result  of  the  American  authorities,  that  the  act  or  con- 
tract of  an  infant  is  in  no  case  to  be  held  purely  void,  unless 
from  its  nature  and  solemnity,  as  well  as  from  the  operation 
of  the  instrument,  it  was  manifestly  and  necessarily  prejudi- 
cial to  him.  Wherever  it  may  he  for  his  benefit,  it  is  at  most 
but  voidable  ;  and  if  it  be  an  act  which  it  was  either  his  duty  * 
to  do,  or  was  manifestly  for  his  benefit,  it  shall  bind  him."  ^ 
But  a  court  of  equity  would  not  allow  an  equitable  interest  to 
be  enforced  against  an  infant  to  his  prejudice,  and  would 
give  him  the  same  power  of  avoidance  over  the  equitable, 
as  over  the  legal  estate.  And  if  the  infant  died  without 
having  avoided  the  trust,  the  court  will  still  investigate  the 
transaction  and  see  that  no  unfair  advantage  was  taken.^ 
But  if  the  infant  is  still  alive,  no  one  but  himself  can  object 
to  his  deed.'^ 

§  34.   The  effect  of  a  marriage  settlement  by  a  female  in- 

1  Jodrell  V.  Jodrell,  9  Beav.  45;  Story,  Eq.  Jur.  §  1375  a. 

2  Co.  Litt.  2i8  a;  Hearle  v.  Greenbank,  1  Ves.  304;  Ownes  v.  Ownes, 

8  C.  E.  Green,  60;  Zouch  v.  Parsons,  3  Burr.  1794;  Bool  v.  Mix,  17 
Wend.  119;  Eagle  F.  Ins.  Co.  v.  Lent,  6  Paige,  635;  Tucker  v.  Moreland, 
10  Pet.  71,  2  Kent,  234;  Gillett  v.  Stanley,  1  Hill,  121. 

8  2  Kent,  235;  Tucker  v.  Moreland,  10  Pet.  58,  71;  Irvine  v.  Irvine, 

9  Wall.  617. 

*  Zouch  V.  Parsons,  3  Burr.  1794,  2  Kent,  234-236;  People  v.  Moores, 
4  Denio,  518 ;  McCall  v.  Parker,  13  Met.  372. 

*  4  Cruise,  Dig.  by  Greenleaf,  p.  15,  note,  and  authorities  cited;  Eagle 
Fire  Co.  v.  Lent,  1  Edw.  Ch.  301;  6  Paige,  635. 

6  Lewin  on  Trusts,  p.  25;  4  Cruise,  Dig.  p.  130;  Starr  u.  Wright,  20 
Ohio  St.  97. 

■^  Ingraham  v.  Baldwin,  12  Barb.  9,  19. 

21 


§  34.]  PARTIES  TO  TKUSTS,  ETC.  [CHAP.  II. 

faiit,  by  which  her  real  and  personal  estate  is  conveyed  to 
trustees,  has  been  frequently  mooted  in  courts.  It  has  been 
decided  that  as  infants  may  contract  marriage,  a  settlement 
made  by  the  consent  of  their  parents  and  guardians  in  con- 
sideration of  a  marriage  to  be  afterwards  solemnized,  should 
be  binding,  inasmuch  as  if  the  marriage  afterwards  takes 
place,  the  situation  of  the  parties  is  altered,  and  the  interests 
of  third  persons,  or  children  born  of  the  marriage,  may  be 
affected.  Lord  Macclesfield  and  Lord  Hardwicke  upon  these 
considerations  refused  to  disturb  such  settlements.^  But  Lord 
Thurlow  dissented  from  these  opinions ;  ^  and  the  law  is  now 
settled,  that  a  deed,  executed  by  a  female  infant  in  con- 
sideration of  marriage,  does  not  bind  her  real  estate,  unless, 
having  come  of  age,  she  assents  to  it  after  the  death  of  her 
husband.^  There  is  no  reason  why  the  marriage  settlement 
of  a  male  infant  should  not  be  governed  by  the  same  rule, 
except  that  he  could  confirm  the  same  after  he  became  of  age, 
and  before  the  death  of  his  wife.  The  settlement  will  bind 
the  husband  if  he  is  of  full  age.*  It  has  been  settled,  how- 
ever, after  considerable  conflict,  that  a  female  infant  may  bar 
herself  of  dower  and  of  a  distributive  share  in  her  husband's 
estate,  by  accepting  a  jointure  before  marriage.^  And  she 
may,  before  marriage,  make  a  binding  settlement  of  her  per- 
sonal estate,  for  such  a  settlement  will  be  for  her  benefit,  as 

1  Cannel  v.  Buckle,  2  P.  Wms.  243;  Harvey  v.  Ashley,  3  Atk.  607; 
Tabb  V.  Archer,  3  Hen.  &  M.  399;  Healy  v.  Rowan,  5  Grat.  414;  Lester 
V.  Frazer,  Riley,  Ch.  76;  2  Hill,  Ch.  529. 

2  Durnford  v.  Lane,  1  Bro.  Ch.  106. 

3  Milner  v.  Lord  Harewood,  18  Ves.  259 ;  Trollope  v.  Linton,  1  Sim. 
&  Stu.  477;  Simson  v.  Jones,  2  Russ.  &  My.  365;  Temple  v.  Hawley,  1 
Sand.  Ch.  153  ;  Dominick  v.  Michael,  4  Sand.  374;  Levering  v.  Levering, 
3  Md.  Ch.  365;  Shaw  v.  Boyd,  5  S.  &  R.  312;  Wilson  v.  McCullogh,  19 
Pa.  St.  77;  Healy  v.  Rowan,  5  Grat.  414;  In  re  Waring,  12  Eng.  L. 
&  Eq.  351;  Cave  v.  Cave,  15  Beav.  227,  19  Eng.  L.  &  Eq.  280;  Field  v. 
Moore,  7  De  G.,  M.  &  G.  691;  35  Eng.  L.  &  Eq.  498;  Lee  v.  Stuart, 
2  Leicrh,  7G. 

*  Whichcote  v.  Lyle's  Ex'rs,  28  Pa.  St.  73;  Levering  v.  Heighe,  2 
Md.  Ch.  81. 

5  Drury  v.  Drury,  2  Eden,  39;  Buckinghamshire  v.  Drury,  2  Eden, 
60-75;  McCartee  v.  Teller,  2  Paige,  511. 
22 


CHAP.  11.]  LUNATICS.  [§  35. 

otherwise  it  would  vest  in  the  husband,  and  it  would  in  effect 
be  liis  settlement  and  not  hers ;  ^  but  such  settlement  is  not 
good  of  chattels  that  would  not  go  to  the  husband.  It  is  now 
settled  in  England  by  statute  that  a  male  infant  over  twenty 
years  of  age  and  a  female  over  seventeen  may  make  a  valid 
marriage  settlement  of  their  real  and  personal  estates,  under 
the  sanction  of  the  Court  of  Chancery .^ 

§  35.  It  was  a  maxim  of  the  common  law,  that  no  man  of 
full  age  could  be  allowed  to  stultify  himself ;  hence  the  acts, 
deeds,  and  feoffments  of  idiots  and  lunatics  were  held  to  be 
binding,  and  not  voidable  by  the  party  himself,  though  they 
could  be  avoided  by  his  heirs,  executors,  or  administrators.^ 
This  maxim  never  prevailed  in  the  United  States,  and  is  not 
now  the  law  of  England.  The  conveyance  of  a  lunatic  is  not, 
however,  absolutely  void,  but  only  voidable  by  himself  as  well 
as  by  his  friends  and  representatives.*  But  after  inquisition 
declaring  him  incompetent,  all  contracts  made  by  him,  until 
restored  to  the  control  of  his  property,  are  void.^  It  follows 
that  a  conveyance  by  a  lunatic  upon  a  trust  will  be  good  until 
it  is  avoided,  and  a  court  of  equity  would  not  set  it  aside, 
if  it  was  fair  and  reasonable,^  and  if  the  parties  could  not 
be  restored  to  their  original  condition ;  nor  would  the  court 

1  Durnford  v.  Lane,  1  Bro.  Ch.  Ill;  Levering  v.  Levering,  3  Md.  Ch. 
365;  Field  v.  Moore,  7  De  G.,  M.  &  G.  691;  Ainslie  v.  Medycott,  9  Ves. 
19  ;  Stamper  v.  Barker,  5  Mad.  134;  Williams  v.  Chitty,  3  Ves.  551;  John- 
son V.  Smith,  1  Ves.  315;  Simson  v.  Jones,  2  Russ.  &  My.  365;  Succes- 
sion of  Wilder,  22  La.  An.  219. 

2  18  &  19  Vict.  c.  43.     1855. 
8  Co.  Litt.  247  b. 

4  Allis  V.  Billings,  6  Met.  415;  Breckenridge  v.  Ormsby,  1  J.  J.  Marsh. 
239;  Price  v.  Berrington,  3  Mac.  &  G.  486  ;  Moulton  v.  Camroux,  2  Exch. 
487,  4  Exch.  17;  Mihier  v.  Turner,  4  Monr.  245;  Ballew  v.  Clark,  2  L-ed. 
23;  Owing's  Case,  1  Bland,  370;  Elliot  v.  Ince,  7  De  G.,  M.  &  G.  488; 
Campbell  v.  Hooper,  3  Sm.  &  Giff.  153;  Wait  v.  Maxwell,  5  Pick.  217; 
Mitchell  V.  Kingman,  Id.  431;  Snowden  v.  Dunlavey,  11  Pa.  St.  522. 

*  L'Amoureux  v.  Crosby,  2  Paige,  422;  Pearl  v,  McDowell,  3  J.  J. 
Marsh.  058. 

6  Niell  V.  Morley,  9  Ves.  478;  Story,  Eq.  Jur.  §  228. 

23 


§  38.]  PARTIES  TO  TRUSTS,  ETC.  [CHAF.  II. 

interfere  against  bona  fide  purchasers  without  notice  of  the 
lunacy.^ 

§  36.  An  alien  may  take  real  estate  by  devise  or  purchase, 
though  he  cannot  take  by  operation  of  law,  as  by  descent,  or 
as  tenant  by  curtesy.  If  an  alien  takes  land  by  purchase,  he 
may  hold  it  until  office  found ;  and  if  he  conveys  it  in  trust 
or  otherwise,  his  grantee  will  hold  it  until  office  found.  An 
alien  can  therefore  create  a  trust  of  real  estate  only  until  the 
State  interposes.  An  alien  may  exercise  all  rights  of  owner- 
ship over  personal  property,  consequently  he  can  create  a 
valid  trust  in  it.^ 

§  37.  By  the  bankrupt  law  of  England  all  the  property 
which  the  bankrupt  is  entitled  to  up  to  the  date  of  the  certifi- 
cate of  his  discharge  vests  in  his  assignees ;  ^  and  he  can  cre- 
ate no  trust  in  it,  except  in  the  surplus  that  may  remain  after 
the  payment  of  all  his  debts.*  Under  the  bankrupt  laws  of 
the  United  States  and  the  insolvent  laws  of  the  various  States, 
only  the  interests  of  the  bankrupt  existing  at  the  date  of  the 
assignments  vest  in  his  assignees;^  he  may,  therefore,  create 
a  valid  trust  in  property  acquired  after  the  assignment  and 
before  the  certificate. 

II.    Who  may  he  a  Trustee. 

§  38.  It  is  a  rule  that  admits  of  no  exception,  that  equity 
never  wants  a  trustee,  or,  in  other  words^  that  if  a  trust  is 
once  properly  created,  the  incompetency,  disability,  death,  or 
non-appointment  of  a  trustee  shall  not  defeat  it.^     Thus,  if 

^  Carr  v.  Halliday,  1  Dev.  &  Batt.  344;  Price  v.  Berrington,  3  Mac.  & 
G.  486;  Greenslade  v.  Dare,  20  Beav.  285. 

2  2  Kent,  pp.  1-36;  Lewin  on  Trusts,  p.  25;  Plill  on  Trustees,  p.  47. 

3  12  &  13  Vict.  c.  106,  §§  141,  142. 

*  Lewin  on  Trusts,  p.  26;  Hill  on  Trustees,  p.  47. 

6  In  Matter  of  Grant,  2  Story,  812;  Mosby  v.  Steele,  7  Ala.  299;  Ex 
parte  Newhall,  2  Story,  360. 

«  Co.  Litt,  290  b,  113  a,  Butler's  note  (1);  Story,  Eq.  Jur.  §§  98,  976; 
]McCartee  v.  Orph.  Asy.  Soc  ,  9  Cow.  437;  Crocheron  v.  Jaques,  3  Edw. 
207;  Bundy  v.  Bundy,  28  N.  Y.  410;  Dodkin  v.  Brunt,  L.  R.  6  Eq.  580. 

24 


CHAP.  II.]  WHO    MAY    BE    TRUSTEE.  [§  39. 

property  has  been  bequeathed  in  trust,  and  no  trustee,  or  a 
trustee  disabled  from  taking,  or  one  who  is  dead,  or  refuses  to 
take,  is  appointed,  the  court  will  decree  the  execution  of  the 
trust  by  the  personal  representatives,  if  it  is  personal  property, 
and  by  the  heirs  or  devisees,  if  it  is  real  estate.^  Property 
once  charged  with  a  valid  trust  will  be  followed  in  equity  into 
whosesoever  hands  it  comes,  and  he  will  be  charged  with  the 
execution  of  the  trust,  unless  he  is  a  purchaser  for  value,  and 
without  notice.^  The  holder  of  the  legal  title  and  the  absolute 
interest  in  property  may  convert  himself  into  a  trustee  by 
making  a  valid  declaration  of  trust  upon  good  consideration  ;  ^ 
or  if  he  conveyed  the  property  by  some  conveyance  which 
was  inoperative  in  law,  equity  would  hold  him  to  be  a 
trustee ;  *  as  if  a  man  conveys  property  directly  to  his  wife, 
a  transaction  inoperative  in  most  of  the  States,  equity  would 
uphold  the  act,  and  decree  the  husband  to  be  a  trustee.^ 

§  39.  It  may  be  stated,  in  general  terms,  that  whoever  is 
capable  of  taking  the  legal  title  or  beneficial  interest  in  prop- 
erty, may  take  the  same  in  trust  for  others.^     Whatever  per- 

1  Piatt  V.  Vattier,  9  Pet.  40o;  Gibbs  v.  Marsh,  2  Met.  243;  Withers  v. 
Yeadon,  1  Rich.  Eq.  325;  King  v.  Donnelly,  5  Paige,  46;  Dawson  r. 
Dawson,  Rice,  Eq.  243;  Cushney  v.  Henry,  4  Paige,  345;  De  Barante 
p.  Gott,  6  Barb.  492;  Malin  v.  Malin,  1  Wend.  625;  Mclntire  v.  Zanes- 
ville  C.  &  M.  Co.,  9  Ham.  203;  Kerr  v.  Day,  14  Pa.  St.  114;  Attorney- 
General  V.  Downing,  Amb.  o.jO;  Bennett'.  Davis,  2  P.  Wms.  316;  Sonley 
V.  Clockmakers'  Co.,  1  Bro.  Ch.  81;  Treat's  App.,  30  Conn.  43;  White  v. 
Hampton,  13  la.  259. 

2  Ibid.;  Shepherd  v.  McEvers,  4  John.  Ch.  136. 

3  See  notes  to  Woollam  v.  Hearne,  2  Lead.  Cas.  Eq.  404 ;  Mackreth  v. 
Simmons,  1  Lead.  Cas.  Eq.  235;  Adams  v.  Adams,  21  Wall.  186. 

^  McKay  v.  Carrington,  1  McLean,  50;  Kerr  v.  Day,  14  Pa..  St.  114; 
Crawford  v.  Bertholf,  Saxt.  Ch.  458;  Malin  v.  :Malin,  1  Wend.  625;  Ty- 
son V.  Passmore,  2  Barr,  122;  Ten  Eick  v.  Simpson,  1  Sand.  Ch.  244; 
VVaddington  v.  Banks,  1  Brock.  97;  Atcherley  i'- Vernon,  10  Mod.  518; 
Davie  v.  Beardsham,  1  Ch.  Ca.  39;  Green  v.  Smith,  1  Atk.  572;  Pollex- 
fen  V.  Moore,  3  Atk.  272;  Wall  r.  Bright,  IJ.  &  W.  474. 

6  Huiitly  V.  Huntly,  8  Ired.  Eq.  250;  Livingston  v.  Livingston,  2  John. 
Ch.  537  ;   Garner  v.  Garner,  1  Busb.  Eq.  1. 

6  Fonb.  Eq.  1-39,  n.;  Hill  on  Trustees,  48;  Commissioners  v.  Walker, 
6  How.  (Miss.)  146 

25 


§  39.]  PARTIES  TO   TRUSTS,   ETC.  [CHAP.  11. 

sons  or  corporations  arc  capable  of  having  the  legal  title  or 
beneficial  interest  cast  upon  them  by  gift,  grant,  bequest, 
descent,  or  operation  of  law,  may  take  the  same  subject  to  a 
trust,  and  they  will  become  trustees.  But  it  does  not  follow 
that  whoever  is  capable  of  taking  in  trust,  is  capable  of  per- 
forming or  executing  it.  The  inquiry,  then,  is  not  so  much 
who  may  take  in  trust,  as  it  is  who  may  execute  and  perform 
a  trust.  Sometimes  the  law  provides  against  the  appointment 
of  non-residents  as  trustees.^  If  a  trust  is  cast  upon  a  person 
incapable  of  taking  and  executing  it,  courts  of  equity  will 
execute  the  trust  by  decree,  or  they  will  appoint  some  person 
capable  of  performing  the  requirements  of  the  trust.  Mr. 
Lewin  says  that  "  in  general  terms,  a  person  to  be  appointed 
trustee  should  be  a  person  capable  of  taking  and  holding  the 
legal  estate,  and  possessed  of  natural  capacity  and  legal  ability 
to  execute  the  trust,  and  domiciled  within  the  jurisdiction  of 
the  court."  ^  Sir  George  J.  Turner,  L.  J.,  laid  down  the 
general  rules  which  govern  courts  in  making  appointments  of 
trustees  as  follows  :  — 

"  First,  the  court  will  have  regard  to  the  wishes  of  the 
persons  by  whom  the  trust  has  been  created,  if  expressed  in 
the  instrument  creating  the  trust  or  clearly  to  be  collected 
from  it.  I  think  this  rule  may  be  safely  laid  down,  because 
if  the  author  of  the  trust  has  in  terms  declared  that  a  par- 
ticular person,  or  a  person  filling  a  particular  character,  should 
not  be  trustee  of  the  instrument,  there  cannot,  as  I  apprehend, 
be  the  least  doubt  that  the  court  would  not  appoint  to  the 
office  a  person  whose  appointment  was  so  prohibited ;  and  I 
do  not  think  that  upon  a  question  of  this  description  any 
distinction  can  be  drawn  between  express  declaration  and 
demonstrated  intention.  The  analogy  of  the  course  which 
the  court  pursues  in  the  appointment  of  guardians  affords,  I 
think,  some  support  to  this  rule.  The  court  in  those  cases 
attends  to  the  wishes  of  the  parents,  however  informally  they 
may  be  expressed. 

"  Another  rule  which  may,  I  think,  safely  be  laid  down,  is 

1  Rinker  v.  Bissell,  90  Ind.  375;  Meikel  v.  Greeue,  94  Ind.  344. 

2  Lewin  on  Trusts,  27. 

26 


CHAP.  11.]  KING.  [§  40. 

this,  —  that  the  court  will  not  appoint  a  person  to  be  trustee 
with  a  view  to  the  interest  of  some  of  the  persons  interested 
under  the  trust,  in  opposition  either  to  the  wishes  of  the  tes- 
tator, or  to  the  interests  of  other  of  the  cestuis  que  trust.  I 
think  so  for  this  reason,  that  it  is  of  the  essence  of  the  duty 
of  every  trustee  to  hold  an  even  hand  between  the  parties 
interested  in  the  trust.  Every  trustee  is  in  duty  bound  to 
look  after  the  interests  of  all,  and  not  of  any  particular 
member  or  class  of  members  of  his  cestuis  que  trust. 

"  A  third  rule  which  may  be  safely  laid  down  is  that  the 
court,  in  appointing  a  trustee,  will  have  regard  to  the 
question  whether  his  appointment  will  promote  or  impede 
the  execution  of  the  trust ;  for  the  very  purpose  of  the  ap- 
pointment is  that  the  trust  may  be  better  carried  into 
execution."  ^ 

§  40.  The  sovereign  may  sustain  the  character  of  a  trustee. 
He  has  a  legal  capacity  to  take  and  hold  the  estate,  and  to 
execute  the  trust ;  ^  but  there  is  a  difficulty  in  every  country  in 
executing  the  judgments  and  decrees  of  a  court  against  the 
sovereign  power  of  the  country.  In  England,  it  is  said  that 
the  Court  of  Chancery  has  no  jurisdiction  over  the  king's 
conscience,  for  the  Lord  Chancellor  only  exercises  the  equi- 
table authority  of  the  king  himself  in  judging  between  his 
subjects.  But  the  greater  difficulty  is  in  enforcing  the  decrees 
of  a  court  against  the  sovereign  power ;  for  "  the  arms  of 
equity  are  very  short  against  the  prerogative."  ^  The  subject 
may  have  a  clear  right,  but  no  remedy  either  at  law  or  equity 
against  the  Crown  ;  in  such  case  his  only  resource  is  an  appeal 
to  the  king  by  a  petition  of  right,  and  it  cannot  be  supposed 
that  he  would  be  refused.     The  question  is  now  of  less  im- 

1  Tn  re  Tempest,  L.  R.  1  Ch.  487. 

2  Lewin  on  Trusts,  27. 

3  Pawlett  V.  Attorney-General,  Hard.  407;  Burgess  v.  Wheate,  1  Eden, 
25.5;  Kildare  v.  Eustace,  1  Vern.  439;  Wike's  Case,  Lane,  54;  Penn  v. 
Lord  Baltimore,  1  Ves.  453;  Eeeve  v.  Attorney-General,  2  Atk.  224; 
Hovenden  v.  Lord  Annesley,  2  Sch.  &  L.  617;  Hedge  v.  Attorney-General, 
3  Yo.  &  Col.  342;  Briggs  v.  Light-boats,  11  Allen  (Mass.),  157,  where  all 
the  authorities  are  commented  on. 

27 


§  41.]  PARTIES   TO    TRUSTS,    ETC.  [CHAP.  II. 


portance ;  for  by  statute,  if  trust  property  vests  iiuthe  Crown 
by  escheat,  the  kino;  is  enabled  to  grant  it  to  trustees  for  the 
purpose  of  executing  the  trust.^  And  by  an  amendment  it  is 
further  provided  that  property  held  in  trust  shall  not  escheat 
or  be  forfeited  to  the  Crown  by  the  failure  or  forfeiture  of  the 
trustee; 2  and  it  is  still  further  provided,  that  in  such  cases 
trust  property  shall  be  under  the  control  of  the  Court  of 
Chancery  for  the  use  of  the  parties  beneficially  interested,  and 
that  new  trustees  shall  be  appointed.^  Under  these  statutes 
it  is  said  that  an  equity  will  be  enforced  against  the  Crown.* 
The  only  cases  where  the  question  is  still  open,  whether  a 
trust  can  be  enforced  against  the  Crown,  is  where  the  person 
of  the  sovereign  takes  by  descent  as  heir,  or  by  representa- 
tion, or  where  he  may  have  held  as  trustee  previously  to  his 
acquiring  the  crown,  or  where  a  grant  or  bequest  is  made  to 
him  as  a  trustee.^ 

§  41.  The  United  States,  and  each  one  of  the  separate 
States,  may  sustain  the  character  of  trustee.  They  have 
legal  capacities  to  take  and  execute  trusts  for  every  purpose.^ 
But  a  court  cannot  execute  its  judgments  and  decrees  against 
a  sovereign  State  with  any  more  effect  than  the  courts  of 
England  can  enforce  their  orders  against  the  king.  The 
arms  of  equity  in  America  are  as  short  against  the  sovereign 
power  as  they  are  in  England  against  the  prerogative.  Mr. 
Justice  Gray  has  clearly  shown  that  a  State  cannot  be  sued 
in  law  or  equity  against  its  consent,  or  unless  there  is 
some  general  or  special  statute  authorizing  the  suit.'^  A 
subject  may  have  a  clear  right,  but  no  remedy ;  in  such  case 
he  must  petition  the  legislative  power,  and  there  is  no  reason 

1  39  &  40  Geo.  III.  c.  88.  24^5  ^m.  IV.  c.  23. 

8  13  &  U  Vict.  c.  60,  §§  15,  4G,  47. 

*  Hughes  i;.  Wells,  9  Hare,  749;  13  Eiig.  L.  &  Eq.  389. 

6  Hill  on  Trustees,  50. 

6  See  Mitford  v.  Reynolds,  1  Phill.  185  ;  Nightingale  v.  Goulbourn, 
2  Phill.  594;  5  Hare,  484.  It  was  denied,  however,  that  the  United 
States  could  take  in  trust  in  Levy  ii.  Levy,  33  N.  Y.  97 ;  Shoemaker  0. 
Comm'rs,  36  Ind.  176. 

'  Briggs  V.  Light-boats,  11  Allen,  157. 

28 


CHAP.  II.]  CORPORATIONS.  [§  42. 

to  suppose  that  his  right  would  be  refused.  If  a  State  ac- 
cepts a  trust  by  grant  or  bequest,  it  must  act  through  its 
legislative  powers  in  administering  the  trust,  or  in  creating 
and  appointing  agents  or  officers  to  perform  the  duties  which 
it  assumes ;  as  the  United  States  acted  in  relation  to  the 
bequest  of  James  Smithson  in  trust  for  the  establishment 
of  the  Smithsonian  Institution  for  the  increase  and  diffusion 
of  knowledge  among  men.^  A  limitation  over  of  a  charitable 
devise  to  the  States  of  Maryland  and  Louisiana  in  case  of  for- 
feiture by  the  first  takers  was  held  not  to  vitiate  the  bequest.^ 

§  42,  It  was  formerly  laid  down  that  corporations  could 
not  be  seized  of  lands  to  the  use  of  another,  and  could  not 
be  trustees.^  The  reason  assigned  for  this  rule  was  that  no 
trust  or  confidence  could  be  reposed  in  them ;  that  they 
could  not  be  compelled  to  execute  a  use  or  perform  a  trust, 
for  courts  of  equity,  in  decreeing  the  execution  of  a  trust, 
lay  hold  upon  the  conscience  ;  *  and  it  is  impossible  to  attach 
any  demand  upon  the  conscience  of  a  body  so  artificially 
created  that  it  cannot  in  the  nature  of  things  have  a  con- 
science. Again,  it  was  said  that  they  could  not  be  impris- 
oned if  they  refuse  to  obey  the  decrees  of  the  court.  But 
the  technical  rules  upon  which  it  was  held  that  corporations 
could  not  be  trustees  have  ceased  to  operate ;  and  at  the 
present  day  corporations  of  every  description  may  take  and 
hold  estates,  as  trustees,  for  purposes  not  foreign  to  the 
purposes  of  their  own  existence ;  and  they  may  be  com- 
pelled by  courts  of  equity  to  carry  the  trusts  into  execu- 
tion.^    If  they  misapply  the  trust  fund,  or  refuse  to  obey  the 

1  U.  S.  Stat.  1836,  c.  252,  Vol.  V.  p.  64  (L.  &  Bro.  ed.);  also,  Stat. 
1840,  c.  178,  Vol.  IX.  p.  102. 

2  McDonogh's  Ex'rs  v.  Murdoch,  15  How.  367. 

3  Bacon  on  Uses,  57;  1  Cruise,  Dig.  p.  340. 

4  Sugd.  V.  &  P.  p.  417. 

5  Attorney- General  v.  St.  John's  Hosp.,  2  De  G.,  J.  &  Sm.  621; 
Attorney-General  v.  Landerfield,  9  Mod,  28G;  Dixmmer  i>.  Chippenham, 
14  Ves.  252;  Green  v.  Puitherf orth ,  1  Ves.  468;  Attorney-General  v.  Whor- 
•wood,  1  Ves.  536;  Attorney-General  v.  Stafford,  Barn.  33;  Attorney- 
General  V.  Found.  Hosp  ,  2  Ves.  Jr.  46;  Attorney-General  v.  Clarendon, 
17  Ves.  499;  Attorney- General  v.  Caius  Coll.,  2  Keen,  165;   Attorney- 

29 


§  43.]  PARTIES   TO   TRUSTS,   ETC.  [CHAP.  II. 

decrees  of  the  court,  the  proper  remedy  is  by  distringas, 
sequestration,  or  injunction,  or  l)y  removal  and  appointment 
of  new  trustees.^ 

§  43.  It  must  be  understood,  however,  that  corporations  are 
the  creatures  of  the  law,  and  that  as  a  general  rule  they  can- 
not exercise  powers  not  given  to  them  by  their  charters  or 
acts  of  incorporation.^  For  this  reason  they  cannot  act  as 
trustees  in  a  matter  in  which  they  have  no  interest,  or  in  a 
matter  that  is  inconsistent  with,  or  repugnant  to,  the  purposes 
for  which  they  were  created.^  Nor  can  they  act  as  trustees  if 
they  are  forbidden  to  take  and  hold  lands,  as  by  the  statutes 
of  mortmain,  nor  if  they  are  not  empowered  to  take  the 
property.  But  if  the  trusts  are  within  the  general  scope  of 
the  purposes  of  the  institution  of  the  corporation,  or  if  they 
are  collateral  to  its  general  purposes,  but  germane  to  them, 
as  if  the  trusts  relate  to  matters  which  will  promote  and  aid 
the  general  purposes  of  the  corporation,  it  may  take  and  hold, 
and  be  compelled  to  execute  them,*  if  it  accepts  them.  Thus 
towns,  cities,  and  parishes  may  take  and  hold  property  in 
trust  for  the  establishment  of  colleges,^  for  the  purpose  of 
educating  the  poor,^  for  the  relief  of  the  poor,  though  not 
paupers,  by  furnishing  them  fuel  at  a  low  price,"  and  for  tlie 

General  v.  Ironmongers'  Co.,  2  Beav.  313;  Jackson  v.  Hartwell,  8  Johns. 
422;  Trustees  Phillips  Academy  t'.  King,  12  Mass.  546  ;  Attorney-General 
V.  Utica  Ins.  Co.,  2  Johns.  Ch.  384;  Vidal  w  Girard,  2  How.  187;  Miller 
V.  Lerch,  1  Wal.  Jr.  210;  Columbia  Bridge  Co.  v.  Kline,  Bright,  N.  P. 
320;  Greenville  Acad.,  7  Rich.  Eq.  476;  McDonogh  v.  Murdoch,  15  How. 
367;  Green  v.  Dennis,  6  Cow.  304;  Dublin  Case,  38  N.  H.  577. 

1  Mayor  of  Coventry  v.  Attorney-General,  7  Bro.  P.  C.  235;  3  Mad. 
Ch.  77,  209. 

2  In  ]\Iatter  of  Howe,  1  Paige,  214. 

3  Ibid.;  Jackson  v.  Hartwell,  8  Johns.  422. 

*  Story,  J.,  Yidal  v.  Girard,  2  How.  188-190;  McDonogh  v.  Murdoch, 
15  How.  367;  First  Cong.  Soc.  of  Southington  v.  Atwater,  23  Conn.  34; 
Wetmore  i».  Parker,  7  Lansing,  121. 

5  Vidal  V.  Girard,  ut  supra.  But  see  Perin  v.  McMicken,  15  La.  An. 
154. 

*  McDonogh  v.  Murdoch,  ut  supra. 

"<  Webb  V.  Neal,  5  Allen,  575;  Mclntire  Poor   School  v.   Zanesville 
Canal  Co.,  9  Ohio,  217. 
30 


CHAP.  II.]  CORPORATIONS.  [§  44. 

support  of  schools,^  or  for  any  educational  or  charitable  pur- 
poses within  the  scope  of  its  charter.^  So  also  overseers  of 
the  poor,  supervisors  of  a  county,^  commissioners  of  roads  in 
South  Carolina,'*  trustees  of  the  poor  in  Mississippi,  and  also 
trustees  of  the  school  f und,^  are  corporations  sub  modo  ;  and 
they  may  take  and  execute  trusts  within  the  scope  of  their 
official  duties. 

§  44.  A  bank  may  receive  a  deed,  and  hold  land  in  trust 
to  receive  a  debt  due  to  it.^  One  corporation  may  take  and 
hold  in  trust  for  another,  or  for  a  stranger,"  or  for  an  indi- 
vidual ;  as  where  one  gave  a  legacy  to  a  church  corporation 
in  trust  to  pay  the  income  to  his  housekeeper  for  life,  and 
after  her  death  to  apply  it  to  church  purposes,  it  was  held 
that  the  corporation  might  well  execute  the  trust,  on  the 
principle  that  when  property  is  given  to  a  corporation  partly 
for  its  own  use  and  partly  for  the  use  of  another,  the  power 
of  the  corporation  to  take  and  hold  for  its  own  use  carries 
with  it,  as  a  necessary  incident,  the  power  to  execute  that 
part  of  the  trust  which  relates  to  others.^  The  supervisors 
of  a  county  cannot  take  in  trust  for  a  town  or  village  or 
for  individuals,  but  only  for  the  body  which  they  represent.^ 
Whether  a  particular  corporation  can  hold  as  trustee  for  any 
specific  purpose  must  generally  be  determined  by  the  con- 
struction of  its  charter  and  of  the  laws  of  the  State  in  which 
it  acts.io 

1  First  Parish  in  Sutton  v.  Cole,  3  Pick.  232. 

2  Barnum  v.  Baltimore,  62  Md.  275. 

3  North  Hempstead  v.  Hempstead,  2  Wend.  109;  Jansen  v.  Ostrander, 
1  Cow.  670. 

*  Com.  Roads  v.  McPherson,  1  Spear,  218. 

5  Govenor  v.  Gridley,  Walk.  328;  Carmichael  v.  Trustees,  &c.,  3  How. 
(Miss.)  81. 

6  Morris  v.  Way,  16  Ohio,  478. 

''  Phillips  Academy  v.  King,  12  Mass.  546 

8  In  Matter  of  Howe,  1  Paige,  214. 

9  Jackson  v.  Hartwell,  8  Johns.  422. 

"  Dartmouth  Coll.  v.  Woodward,  4  Wheat.  636 ;  Head  v.  Providence 
Ins.  Co.,  2  Cranch,  127;  State  v.  Stebbins,  1  Stew.  299;  Beaty  v.  Knowler, 
4  Pet.  152;  Beaty  v.  Marine  Ins.  Co.,  2  Johns.  109 ;  People  v.  Utica  Ins. 

81 


§  40.]  PARTIES   TO   TRUSTS,   ETC.  [CHAP.  II. 

§  45.  If  a  corporation  takes  land  by  grant  or  bequest  in 
trust  or  otherwise,  which  by  its  cliarter  it  cannot  hold,  its 
title  is  good  as  against  third  persons  and  strangers;  the  State 
onlv  can  interfere.^  A  corporation  cannot  be  compelled  to 
execute  a  trust  in  property,  the  legal  title  to  wliich  it  has 
no  power  to  take  and  hold ;  ^  but  the  trust,  if  otherwise 
valid,  is  not  for  that  reason  void,  and  the  court  will  appoint 
a  competent  trustee,  and  direct  a  conveyance  of  the  property 
to  him ;  as  where  a  testator  gave  land  to  a  corporation  that 
could  not  take  by  reason  of  the  statute'  of  mortmain,  in  trust 
to  sell  and  apply  the  proceeds  to  persons  competent  to  take, 
it  was  held  that  though  the  devise  was  void  at  law,  yet  in 
equity  it  was  a  valid  trust,  and  that  the  heir  was  a  trustee  to 
the  uses  declared  in  the  will.^ 

§  46.  Grants  or  gifts  to  an  unincorporated  association  in 
trust  for  a  charitable  purpose  are  sustained  in  equity,  as  a 
legacy  to  the  Seamen's  Aid  Society,  to  go  to  their  treasurer 
for  the  time  being  for  the  purposes  of  such  society ;  *  a  be- 
quest over  to  several  unincorporated  societies,  some  of  them 
not  in  the  State,  was  held  good,^  and  if  the  members  are  too 

Co.,  15  Johns.  358;  Xew  York  Fire  Ins.  Co.  v.  Ely,  2  Cow.  678;  State  v. 
Mayor  of  Mobile,  5  Porter,  279. 

^  Runyan  v.  Coster's  Lessee,  14  Pet.  122;  Miller  v.  Lerch,  1  Wal  Jr. 
210;  Leazure  v.  Hillegas,  7  S.  &  R.  321;  Perin  v.  Cary,  24  How  465, 
Chapin  v.  School  Dist.,  35  N.  H.  445,  Troy  v.  Haskell,  33  N  H.  533, 
Philadelphia  v.  Girard,  45  Pa.  St.  9,  Humbert  v.  Trinity  Church,  24 
AVend.  587;  Harpending  v.  Dutch  Church,  16  Pet.  492,  Bogardus  o. 
Trinity  Church,  4  Sand.  Ch.  758;  Angell  &  Ames,  Corp.  §§  151-155. 

2  Sonley  v.  Clockmaker's  Co.,  1  Bro.  Ch.  81 ;  Vidal  v.  Girard,  2  How.  188. 

3  Ibid. ;  Winslow  v.  Cummings,  3  Cush.  358.  This  is  denied  to  be  the 
law  in  the  courts  of  New  York,  in  relation  to  charitable  bequests.  See 
Ayres  v.  Methodist  Church,  3  Sand.  351;  Andrew  v.  Bible  Soc,  4  Sand. 
156;  Levy  v.  Levy,  40  Barb.  585;  33  N.  Y.  97.  These  cases  are  governed 
by  a  statute,  as  is  said,  and  would  not  probably  be  followed  outside  of 
that  State;  nor  are  they  fully  concurred  in  by  their  own  courts,  as  there 
was  a  strong  dissent  in  the  Court  of  Appeals,  the  court  of  last  resort. 

*  Tucker  v.  Seamen's  Aid  Soc,  7  Met.  188;  First  Cong.  Soc.  of  South- 
ington  V.  Atwater,  23  Conn.  56. 

5  Burbank  v.  Whitney,  24  Pick.  146;  Washburn  v.  Sewall,  9  Met.  280. 
But  see  Methodist  Church  u.  Remmington,  1  Watts,  218. 

32 


CHAP.  II.]  UNINCORPORATED    SOCIETIES.  [§  47. 

numerous  to  administer  the  trust,  the  court  will  appoint  a 
trustee.!  go  ^  bequest  to  "  The  Mariue  Bible  Society,"  for 
certain  purposes,  was  held  to  establish  a  charitable  trust, 
although  the  society  was  a  voluntary  association,  and  had 
been  disbanded,  and  the  court  appointed  a  trustee  to  carry 
the  trust  into  effect.^  In  Pennsylvania,  substantially  the 
same  doctrine  has  been  held.^  A  different  doctrine  was  held 
in  the  Supreme  Court  of  the  United  States ;  *  but  the  case 
was  decided  upon  the  law  of  Virginia,  and  may  be  consid- 
ered as  settling  a  local  rather  than  a  general  question.^  The 
later  cases  in  the  same  court  hold  the  general  rule  to  be 
otherwise.^ 

§  47.  A  trust  to  a  board  of  officers  in  their  official  capacity 
for  purposes  within  the  scope  of  their  official  duties  may  be 
executed  by  them.'^  "Where  a  bequest  was  to  the  chancellor 
of  the  State  of  New  York,  the  mayor  and  recorder  of  the 
city  of  New  York,  and  several  other  persons  by  their  official 
description  only,  and  their  successors  in  office,  to  build  and 
maintain  a  hospital,  and  if  this  could  not  be  done  legally, 
they  were  to  apply  for  an  act  of  incorporation,  and  at  all 
events  the  estate  should  be  held  by  an  heir  charged  with  the 
trusts,  it  was  lield  that  the  designation  of  the  trustees  by 
their  official  character  was  equivalent  to  naming  them  by 
their  proper  names ;  that  the  trust  was  not  to  be  executed 
by  them  in  their  official  character,  but  in  their  private  and 
individual  capacity ;  and  that  if  the  trust  had  been  to  the 
officers  named  and  their  successors  to  execute,  and  no  other 

1  Burbank  v.  Whitney,  24  Pick.  140;  Washburn  v.  Sewall,  9  Met.  280. 
But  see  Methodist  Church  v.  Remraington,  1  Watts,  218. 

2  Winslow  V.  Cummings,  3  Cush.  358. 

8  Pickering  v.  Shotwell,  10  Barr,  27  ;  and  see  the  able  opinion  of  Bald- 
win, J.,  in  Magill  v.  Brown,  Bright,  N.  P.  350.  See  also  Methodist 
Church  V.  Remmington,  1  Watts,  218, 

*  Baptist  Asso.  v.  Hart,  4  Wheat.  1 ;  Inglis  v.  Sailors'  Snug  Harbor, 
3  Pet.  114. 

6  Baldwin,  J.,  in  Magill  v.  Brown,  Bright,  N.  P.  354. 

*  Vidal  V.  Girard,  2  How.  187.    See  chapter  on  Charitable  Trusts,  post- 
T  Ante,  §  30. 

VOL.  I.  — 3  33 


§  48.1  PARTIES   TO   TRUSTS,   ETC.  [CHAP.  II. 

provisions  had  been  made,  it  would  have  fallen  within  the 
case  of  Baptist  Association  v.  Hart's  Executors,  and  would 
have  been  void.  -It  was  further  held  that  it  was  a  good  ex- 
ecutory devise  to  a  corporation  to  be  created  in  futuro,  and 
in  the  mean  time  that  the  estates  in  the  hands  of  the  heir 
would  be  held  charged  with  the  trusts.^  A  bequest  to  the 
chancellor  of  the  Exchequer  for  the  time  being  for  the  benefit 
of  Great  Britain  was  held  good  ;  ^  and  the  Governor-General 
of  India  may  take  in  trust  for  the  benefit  of  the  city  of 
Decca.^  Where  a  British  subject  bequeathed  funds  to  the 
President  and  Vice-President  of  the  United  States  and  the 
Governor  of  Pennsylvania  for  the  time  being,  to  establish  a 
college  in  the  State  of  Pennsylvania,  and  directed  that  moral 
philosophy  should  be  taught,  and  that  a  professor  should  in- 
culcate the  rights  of  the  black  people  of  every  clime,  until 
they  were  restored  to  an  equality  of  rights  throughout  the 
Union,  the  Court  of  Chancery  directed  an  inquiry  to  be  made 
whether  the  President,  Vice-President,  and  Governor  would 
accept  the  trust,  and  it  appearing  that  they  declined  to  act, 
it  was  held  that  the  trust  failed  ;  and  as  it  could  not  be 
carried  into  effect,  ei/  pres,  in  a  foreign  country,  that  the  gift 
fell  into  the  residue.*  A  bank  comptroller  is  a  trustee  of  the 
various  securities  held  by  him  for  the  several  banks  ;  but  the 
State  itself  is  not  liable  as  a  trustee  for  his  acts.^ 

§  48.  Married  women  may  become  trustees  by  deed,  gift, 
bequest,  appointment,  or  by  operation  of  law.^  If  an  estate 
comes  to  a  married  woman  in  any  way,  charged  with  a  trust, 

^  InsjHs  V.  Trustees  of  the  Sailors'  Snug  Harbor,  3  Pet.  99. 

2  Nisjhtingale  v.  Goulbourn,  2  Phill.  594;  5  Hare,  484. 

3  Mitford  V.  Reynolds,  1  Phill.  185. 

*  Xew  V.  Bonaker,  L.  R.  4  Eq.  Ca.  655. 

5  State  V.  Rush,  20  Wis.  212. 

^  Lake  t;.  DeLambert,  4  Ves.  595;  Compton  v.  CoUinson,  2  Bro.  Ch. 
377;  Hearle  v.  Greenbank,  1  Ves.  305;  Bell  v.  Hyde,  Pr.  Ch.  350;  Moore 
V.  Hussey,  Hob.  95;  Needles  v.  Bish.  of  Winchester,  Hob.  225;  Clarke  v. 
Saxon,  1  Hill,  Ch.  69;  Bradish  v.  Gibbs,  3  Johns.  Ch.  523;  Livingston  v. 
Livingston,  2  Johns.  Ch.  541;  Dundas  i'.  Biddle,  2  Barr,  160;  Claussea 
V.  La  Franz,  1  Clarke  (la.),  226;  Harden  v.  Darwin  &  Pulley^  66  Ala.  55. 
84 


CHAP.  II.]  MARRIED    WOMEN.  [§  49. 

her  coverture  cannot  be  pleaded  in  bar  of  the  trust  ;i  and  a 
court  of  equity  will  enforce  its  execution  ;  as  when  the  legal 
title  to  land  in  trust  was  cast  by  descent  upon  a  married 
woman,  and  the  law  required  that  a  deed  executed  by  her 
should  be  acknowledged,  as  executed  voluntarily,  and  she 
refused  so  to  acknowledge  it,  the  court  compelled  her  by  de- 
cree.2  But  specific  performance  will  not  be  enforced  against 
a  feme  covert  trustee  for  sale  upon  her  contract  as  trustee 
to  convey.'^  There  is  no  less  judgment  and  discretion  in  a 
woman  after  marriage  than  before.  Sir  John  Trevor  thought 
she  rather  improved  by  her  husband's  teaching.*  The  reasons 
for  her  disabilities  are  founded  upon  her  own  interests,  or  her 
husband's,  or  both  ;^  or  rather  upon  the  broader  policy  of  the 
law  which,  for  the  purpose  of  domestic  peace  and  happiness, 
merges  the  proprietary  interests  of  the  wife  during  coverture 
in  her  husband,  and  will  not  permit  her  to  hold  interests 
separate  from,  and  independent  of,  and  possibly  antagonistic 
to  him.  The  policy  of  the  law  has,  however,  been  very  much 
modified  by  legislation  in  later  years.  But  where  such  inter- 
ests are  not  concerned,  she  possesses  the  same  legal  capacity 
as  if  she  were  aui  juris.  Thus,  she  may  execute  any  kind  of 
power,  whether  simply  collateral,  appendant,  or  in  gross ;  and  it 
is  immaterial  whether  it  is  given  to  her  while  sole  or  married.^ 

§  49.  In  equity,  the  absolute  interest  in  the  trust  fund  is 
vested  in  the  cestui  que  trust,  the  trustee  is  a  mere  instru- 
ment, and  any  power  or  authority  in  the  trustee  must  have 
the  character  of  a  power  simply  collateral ;  '^  therefore  there 

1  Clarke  v.  Saxon,  1  Hill,  Ch.  69;  Berry  v.  Norris,  1  Duv.  302. 

2  Dundas  v.  Biddle,  2  Barr,  160. 

8  Berry  r.  Norris,  1  Duv.  302;  Avery  v.  Griffin,  L.  R.  6  Eq.  606. 

*  Bell  V.  Hyde,  Pr.  Ch.  350. 

6  Compton  V.  CoUinson,  2  Bro.  Ch.  377. 

8  Co.  Litt.  112  a,  187  b;  Lord  Antrim  v.  Buckingham,  2  Freeman, 
168;  Blithe's  Case,  Id.  91 ;  Godolphin  v.  Godolphin,  1  Ves.  23;  Sugden  on 
Powers,  144-155;  4  Kent,  324;  Thompson  v.  Murray,  2  Hill,  Ch.  214; 
Bradish  v.  Gibbs,  3  Johns.  Ch.  523. 

''  Smiths.  Smith,  21  Beav.  385;  Drummond  v.  Tracy,  1  Johns.  608; 
Kingham  v.  Lee,  15  Sim.  401 ;  People  v.  Webster,  10  Wend.  554. 

35 


§  50.]  PARTIES  TO   TRUSTS,   ETC.  [CHAP.  II. 

is  nothing,  as  respects  legal  capacit}-,  to  prevent  a  married 
woman  from  administering  a  discretionary  trust.^  But  she 
cannot  create  a  trust  in  her  absolute  property  except  by  join- 
ing her  husband  in  conveying  it,  or  in  executing  a  declaration 
of  trust.2 

§  50.  At  the  same  time  a  husband  must  always  have  a  large 
influence  over  a  feme  covert  trustee ;  indeed,  as  he  would  be 
answerable  for  her  acts,  and  liable  for  her  breaches  of  trust, 
he  must,  for  his  own  protection,  look  to  the  manner  in  which 
she  administers  the  fund  ;  and  she  must  join  her  husband  in 
suits  in  relation  to  the  trust  property .^  Again,  if  land  is 
conveyed  to  a  married  woman  upon  a  declared  trust  without 
powers  of  sale,  and  it  becomes  necessary  to  sell  and  convey 
the  land,  is  the  husband  to  join  or  not  in  the  conveyance ;  and 
to  whom  is  the  purchase-money  to  be  paid,  and  upon  whose 
receipt  ?  *  Mr.  LcAvin  thinks  that  the  joint  receipt  of  the  hus- 
band and  wife  should  be  taken ;  but  that  the  safest  way  would 
be  to  pay  the  money  into  some  bank  upon  their  joint  receipt, 
to  remain  until  wanted  for  the  purposes  of  the  trust,  and  that 
if  the  husband  took  it  out  for  any  other  purpose,  he  would  be 
liable  as  for  a  breach  of  trust.^  Another  inconvenience  arises 
in  probate  and  other  trusts,  where  the  trustee  may  be  required 
to  give  bonds  for  the  faithful  administration  of  the  trust.  A 
court  of  equity  may  require  the  trustee  to  give  security  for 
the  property,  even  though  the  trust  arises  by  operation  of  law.^ 
A  married  woman  can  enter  into  contracts  only  in  relation  to 
her  sole  and  separate  estate  ;  and  how  far  she  can  bind  her- 
self, or  her  estate,  by  a  bond  to  execute  a  trust  in  property, 
the  beneficial  interests  in  which  belong  to  another,  would 

1  Smith  V.  Smith,  21  Beav.  385;  Drummond  v.  Tracy,  1  Johns.  608; 
Kingham  v.  Lee,  15  Sim.  401;  People  v.  Webster,  10  Wend.  554. 

2  Graham  v.  Long,  65  Pa.  St.  383. 

3  Still  V.  Ruby,  35  Pa.  St.  373. 

^  See  Daniel  v.  Uhley,  Wm.  Jones,  137 ;  Co.  Litt.  112  a,  Hargrave's 
note  (6);  1  Fonb.  Eq.  92;  McNeille  v.  Acton,  2  Eq.  R.  25. 

5  Lewin  on  Trusts,  24,  25;  Drummond  v.  Tracy,  1  Johns.  611 ;  4  Cruise, 
Dig.  143;  Co.  Litt.  112  a,  Hargrave's  note  (6). 

«  Clarke  v.  Saxon,  1  Hill,  Ch.  69. 
36 


CHAP.  II.]  INFANTS.  [§  52. 

always  be  a  perplexing  question,  although  the  sureties  in  such 
a  bond  might  be  liable. 

§  51.  Subject  to  these  inconveniences,  a  married  woman 
can  always  be  a  trustee  ;  and  she  may  even  be  a  trustee  for 
her  husband,^  as  well  as  her  husband  tor  her,^  and  courts  will 
find  means  to  enforce  the  trusts  ;  but  they  will  not  appoint 
married  women  to  such  offices,  nor  will  they  appoint  them  to  be 
guardians  of  minors;^  a  woman,  on  the  contrary,  will  be  re- 
moved from  the  office  if  she  is  appointed  while  sole  and  after- 
wards marries.^  For  the  same  reason  it  is  undesirable  to 
appoint  a  feme  sole  trustee ;  for  should  she  marry,  her  hus- 
band, being  liable  for  her  breaches  of  trust,  ought  to  have 
control  of  her  acts,  and  the  character  of  the  trust  is  changed. 
On  these  grounds  the  courts  at  one  time  refused  to  appoint 
a  feme  sole  trustee  ;  ^  but  it  is  a  matter  of  sound  discretion 
in  the  court,  and  in  a  more  recent  case  a  feme  sole  was 
appointed.^ 

§  52,  Infants  labor  under  still  greater  disabilities  than 
married  women,  for  a  married  woman  has  judgment,  discre- 
tion, and  capacity,  though  she  cannot  in  all  cases  freely  exer- 
cise  them ;    but   an   infant   wants   judgment  and   capacity," 

^  Livingston  v.  Livingston,  2  Johns.  Ch,  54L 

2  Bennet  r,  Davis,  2  P.  Wras.  316;  Shirley  v.  Shirley,  9  Paige,  363; 
Jamison  v.  Brady,  6  S.  &  R,  467;  Boykin  v.  Ciples,  2  Hill,  Ch.  200;  Pic- 
quet  V.  Swan,  4  Mason,  455;  Griffith  v.  Griffith,  5  B.  Monr.  113. 

2  Re  Kaye,  L,  R.  1  Ch.  387.  In  Massachusetts,  by  statute,  a  married 
woman  may  be  executrix,  administratrix,  guardian,  or  trustee,  and  may 
bind  herself  and  the  estate,  without  her  husband  joining,  with  the  same 
effect  as  if  she  were  sole ;  and  a  woman  may  continue  to  hold  the  trust 
to  which  she  has  been  appointed,  notwithstanding  her  subsequent 
marriage. 

*  Lake  v.  DeLambert,  4  Ves.  595.  The  trustee  in  this  case  had  mar- 
ried a  foreigner,  but  Lord  Chancellor  Loughborough  simply  remarked 
"  that  it  was  very  inconvenient  for  a  married  woman  to  be  trustee," 

^  Brooks  V.  Brooks,  1  Beav.  531. 

«  Re  Campbell's  Trusts,  31  Beav.  176. 

^  Hearle  v.  Greenbank,  3  Atk.  712;  1  Ves.  305;  Grange  v.  Tiving, 
Bridg.  O.  108;  Compton  v.  Collinson,  2  Bro.  Ch.  377;  Sockett  v.  Wray, 

37 


§  53.]  PARTIES   TO    TRUSTS,   ETC.  [CHAP.  II. 

From  this  want  of  judgment  and  capacity  an  infant  can  do 
nothing  that  requires  the  exercise  of  discretion.  It  is  true 
that  his  acts  are  voidable  only  and  not  void;i  but  every  act, 
not  simply  ministerial,  is  at  least  voidable ;  but  where  he 
signs  an  acquittance  without  receipt  of  the  money,  it  is  an 
exercise  of  discretion,  and  is  actually  void.^  An  infant  is 
capable  of  executing  a  naked  power  unaccompanied  with  any 
interest,  or  not  requiring  any  discretion.^  If  a  power  is  given 
to  an  infant  relating  to  his  own  estate,  it  must  be  inserted  in 
the  deed  that  he  may  execute  it  during  his  infancy,  or  his 
execution  of  it  will  have  no  effect.'*  As  was  shown  before, 
trustees  generally  exercise  powers  over  the  trust  fund  simply 
collateral ;  ^  but  if  the  exercise  of  these  powers  requires  the 
application  of  any  prudence  or  discretion,  an  infant  is  inca- 
pable of  executing  them.^ 

§  53.  From  these  inconveniences  and  incapacities  attending 
the  administration  of  a  trust  by  an  infant,  he  never  would  be 
appointed  by  a  court  to  such  an  office.  He  could  not  give  a 
valid  security  or  bond  for  the  safety  of  the  trust  fund,  nor 
could  a  court  decree  him  to  make  satisfaction  for  a  breach 
of  the  trust."  But  an  infant  has  no  privilege  to  cheat,^ 
and  he  will  not  be  protected  in  cunning  and  contrived 
frauds,^ 

4  Bro.  Ch.  486.  See  Co.  Litt.  3  b,  128  a,  88  b,  172  a,  264  b,  Har^rave's 
note  (4);  1  AVatk.  on  Copyh.  24;  Eddleston  v.  Collins,  3  De  G  ,  M.  &  G. 
1;  Toller's  Ex'rs,  31;  Halliburton  v.  Leslie,  2  Hog.  252. 

^  A?ite,  §  33;  Lewin  on  Trusts,  32. 

2  Russell's  Case,  5  Rep.  27  a;  Co.  Litt.  172  a,  264  b;  1  Roll.  Ab.  730, 
F.  2;  Cropster  v.  Griffith,  2  Bland,  5. 

8  4  Kent,  324. 

*  Coventry  v.  Coventry,  2  P.  Wms.  229;  1  Sug.  on  Powers,  213-220 
(6th  ed.). 

5  Ante,  §  14. 

6  Kingt;.  Bellord,  1  Hem.  &  M.  343;  Hearle  v.  Greenbank,  3  Atk.  695; 
1  Ves.  298;  Grange  v.  Tiving,  Bridg.  O.  109. 

'  Whitmore  v.  Weld,  1  Yern.  328;  Russell's  Case,  5  Rep.  27  a;  Hiud- 
marsh  v.  Southgate,  3  Russ.  324. 

8  Evroy  v.  Nicholas,  2  Eq.  Ca.  Ab.  489. 

9  Cory  ('.  Gertcken,  2  Mad.  40;  Buckingham  v.  Drury,  2  Eden,  71,  72^ 

38 


CHAF.  II.]  ALIENS    AS   TRUSTEES.  [§  55. 

§  54.  But  an  infant  may  still  be  a  trustee  ;  lie  may  be  actu- 
ally named  as  trustee  in  any  instrument,  and  the  estate  will 
pass  to  him  ;  and  if  such  an  appointment  is  made,  he  cannot 
set  up  any  claim  to  the  beneficial  interest  in  the  estate ;  ^  but 
a  court  of  equity  would  direct  the  execution  of  the  trust  by 
himself  or  guardian,^  or  would  remove  him  and  appoint  some 
one  competent  to  act.  So  an  estate  charged  with  a  trust  may 
be  cast  upon  an  infant  by  descent,  or  by  operation  of  law ;  as 
where  a  father  bought  and  paid  for  land,  but  took  the  convey- 
ance in  the  name  of  a  son  five  years  old,  the  court  held  that 
the  land  in  the  hands  of  the  son  was  charged  with  a  resulting 
trust  for  the  father,^  In  another  case,  where  the  fatlier  had 
purchased  land  in  the  name  of  an  infant  son,  it  was  presumed 
to  have  been  an  advancement,  rather  than  to  make  the  infant 
a  trustee.*  From  the  great  inconvenience  attending  the  ap- 
pointment of  an  infant  as  trustee,  a  strong  presumption  arises 
that  property  conveyed  to  an  infant  is  intended  for  his  benefit, 
as  an  advancement  or  otherwise,  and  the  court  will  not  infer 
an  intention  that  he  is  to  take  it  in  trust,  unless  it  distinctly 
appears.^ 

§  55.  Aliens  can  take  and  hold  real  estate  by  grant  in  trust 
to  the  same  extent  as  they  can  take  and  hold  the  legal  title  ;  ^ 
that  is,  until  office  found  ;  though  it  is  said  that  they  cannot 

Clare  v.  Bedford,  13  Vin.  536;  Watts  v.  Cresswell,  9  Vin.  415;  Beckett  v. 
Cordley,  1  Bro.  Ch.  358;  Savage  v.  Foster,  9  Mod.  37;  Overton  v.  Banis- 
ter, 3  Hare,  503,  Stikeman  v.  Dawson,  1  De  G.  &  Sm.  503;  Wright  v. 
Snowe,  2  De  G.  &  Sm.  321 ;  Davis  v.  Hodgson,  25  Beav.  117 ;  Hillyer  v. 
Bennett,  3  Edw.  Ch.  544;  Hill  v.  Anderson,  5  S.  &  M.  216. 

1  King  V.  Denison,  1  Ves.  &  B.  275;  Jevon  v.  Bush,  1  Vern.  343;  Lake 
V.  DeLambert,  4  Ves.  596  n. 

2  Ex  parte  Sergison,  4  Ves.  149,  and  n.  ;  In  Matter  of  Fallen,  1  Mc- 
Carter,  147. 

3  Binion  v.  Stone,  2  Freem.  169.  See  Bowra  v.  Wright,  4  De  G.  &  Sm.  265. 
*  Lamplugh  v.  Lamplugh,  1  P.  Wms.  112;  Matter  of  Rindle,  2Edw.  585. 
8  Ibid.;  Blinkhorne  v.  Feast,  2  Ves.  30;  Mumma  v.  Mumma,  2  Vern. 

19;   Taylor  v.  Taylor,  1  Atk.  386;  Smith  v.  King,   16  East,  28-3.     See 
also  Grey  v.  Grey,  Finch,  338;  1  Ch.  Ca.  296;  Elliott  v.  Elliott,  2  Ch.  Ca. 
231;  Stiieman  v.  Ashdown,  2  Atk.  480;  Ebrand  v.  Dancer,  2  Ch.  Ca.  26; 
Scroope  v.  Scroope,  1  Ch.  Ca.  27;  Pole  v.  Pole,  1  Ves.  76. 
6  Ante,  §  36;  Marshall  v.  Lovelass,  Cam.  &  Nor.  217. 

39 


§  56.]  PARTIES  TO   TRUSTS,   ETC.  [CHAP.  U. 

take  by  act  of  la\v  as  by  descent.^  There  is  a  conflict  of  de- 
cisions, whether  they  can  take  by  devise  or  not.^  But  an  alien 
cannot  plead  his  alienage  to  defeat  any  trust  that  may  be 
charged  upon  the  lands  that  come  to  him,  nor  in  bar  of  any 
contract  made  by  him  in  relation  to  the  purchase  of  lands.^ 
If  lands  in  the  hands  of  an  alien  charged  with  a  trust  escheat 
to  the  State,  the  State  as  a  general  rule  takes  only  the  title 
that  the  alien  had  ;  and  there  are  statutes  in  many  States  that 
provide  for  carrying  the  trust  into  execution.  It  has  been 
held  that  an  alien  may  be  a  corporator  and  trustee  for  a  cor- 
poration ;  '^  and  that  if  an  alien  trustee  sold  and  conveyed  the 
trust  estate,  equity  would  not  set  the  sale  aside.^  As  to  per- 
sonal property  aliens  have  the  same  rights  and  privileges  as 
citizens,  and  they  can  execute  trusts  of  personal  chattels  to 
the  same  extent  as  citizens.  An  alien  may  take  a  mortgage 
of  land  as  security  for  debt,  and  he  may  have  a  decree  of 
foreclosure  or  sale  of  the  land  for  the  payment  of  the  debt.^ 
But  if  the  alien  is  domiciled  abroad,  it  is  an  objection  to  his 
fitness  for  the  office,  as  he  is  not  within  the  jurisdiction  of 
the  court.'^ 

§  56.  Lunatics  can  take  a  legal  title  by  descent  or  by 
devise,  and  they  can  take  by  purchase  or  grant,  although  they 

1  OiT  V.  Hodgson,  4  Wheat.  4.o3;  Wright  v.  Trust.  Meth.  Ep.  Church, 
1  Hoff.  Ch.  202;  Buchanan  v.  Deslion,  1  Har.  &  G.  280;  Ex  parte  Du- 
pont,  1  Harp.  Ch.  5;  Trembles  v.  Harrison,  1  B.  Monr.  140;  Montgom- 
ery V.  Dorion,  7  N.  H.  475;  Foss  v.  Crisp,  20  Pick.  121;  Smith  v.  Zauer, 
4  Ala.  99. 

2  In  Craig  v.  Radford,  3  Wheat.  594;  Atkins  r.  Kron,  2  Ired.  Ch.  58, 
it  was  held  that  a  devise  to  an  alien  would  not  vest  the  title  in  him ;  but 
in  Vaux  v.  Nesbit,  1  McC.  Ch.  3.52;  Clifton  v.  Haig,  4  Des.  330;  Stephen 
V.  Swann,  9  Leigh,  404,  it  was  held  that  a  devise  would  vest  the  title  in 
him  subject  to  escheat  on  ofBce  found. 

3  Dunlop  V.  Hepburn,  1  Wheat.  179;  3  Wheat.  231;  Scott  v.  Thorpe, 
1  Edw.  Ch.  512;  Waugh  v.  Riley,  8  Met.  290. 

*  Commeyer  w.  United  German  Churches,  2  Sand.  Ch.  186. 
6  Ferguson  v.  Franklin,  6  :Munf.  305  ;  Escheator  v.  Smith,  4  McC.  452. 
«  Hughes  V.  Edwards,  9  Wheat.  489. 

'  Meinertzhager  v.  Davis,  1  Coll.  C.  C.  335;  In  re  Tempest,  Law  Rep. 
1  Ch.  485. 
40 


CHAP.  II.]  BANKRUPT.  [§  58.^ 

have  not  mind  enough  to  accept  the  conveyance.  A  valid 
acceptance  will  be  presumed  aftpr  long  acquiescence  by  all 
parties,  or  if  the  cestui  que  trust  accept  the  deed,  it  will  be 
sufficient.^  But  lunatics  cannot  execute  a  trust  that  requires 
judgment  and  discretion,  as  they  are  incapable  of  giving  a 
valid  assent  that  will  bind  themselves,  the  estate,  or  the  cestui 
que  trust?  Whenever  a  trust  estate  is  vested  in  a  lunatic,  it 
must  be  administered  by  his  guardian,  or  by  the  court,  or  he 
will  be  removed  and  a  competent  person  appointed.  An 
habitual  or  common  drunkard  may  be  a  trustee,  but  he  may 
be  removed.^ 

§  57.  A  religious  person,  who  by  vows  has  renounced  the 
world,  as  a  nun  or  monk,  may  be  a  trustee  or  guardian.  It  is 
a  matter  for  their  own  consciences,  whether  they  will  take 
such  an  office,  and  courts  cannot  regard  their  religious 
associations.* 

§  53.  A  bankrupt  or  insolvent  is  competent  to  take,  hold, 
and  execute  a  trust.  The  trust  estate  does  not  pass  to  his 
assignees,  nor  does  his  certificate  discharge  him  from  any 
fiduciary  debts  or  obligations.  As  he  holds  only  for  the  cestui 
que  trust,  he  cannot  charge  or  incumber  the  estate  otherwise 
than  for  the  beneficiary.^  A  witness  to  a  will  who  is  incapable 
of  taking  a  legacy  to  himself  may  yet  take  a  legacy  in  trust 
in  which  he  has  no  interest.*^ 

1  Eyrick  v.  Hetrick,  13  Pa.  St.  494;  Re  Bloomar,  2  De  G.  &  Jon.  88. 
^  Loomis  V.  Spencer,  2  Paige,  153;  Swartwout  v.  Burr,  1  Barb.  495; 
Person  v.  Warren,  14  Barb.  488. 
8  Webb  V.  Dietrich,  7  W.  &  S.  401. 

4  Smith  V.  Young,  5  Gill,  197. 

5  Scott  V.  Surnam,  Willes,  402;  Carpenter  v.  Marnell,  3  B.  &  P.  41; 
Gladstone  v.  Hadwen,  1  M.  &  S.  526;  Ex  parte  Glanys,  1  Mont.  &  Mac. 
258;  Ex  parte  Painter,  2  Deac.  &  Ch.  584;  Butler  v.  Merchants  Ins.  Co., 
14  Ala.  798;  Shryock  v.  Waggoner,  28  Pa.  St.  431;  Harris  v.  Harris, 
29  Beav.  107;  Copeman  v.  Gallant,  1  P.  AYms.  314;  Gardner  v.  Rowe, 
2  Sim.  &  St.  346;  Lounsbury  v.  Purdy,  11  Barb.  490;  Ludwig  v.  Highley, 
5  Barr,  132;  Welhelm  v.  Palmer,  6  Barr,  296;  Kep  v.  Bank  of  N.  Y.,  10 
Johns.  63;  Bliss  v.  Pierce,  20  Vt.  25;  Ontario  Bank  v.  Mumford,  2  Barb. 
Ch.  .596. 

^  Hogan  V.  Wvman,  2  Oregon,  302. 

41 


§  02.]  WHO   MAY   BE   CESTUIS   QUE   TRUST.  [CHAP.  II. 

§  59.  Cestuis  que  trust  are  not  incapable  of  taking  in  trust 
for  themselves  and  others,  but  they  are  not  altogether  fit 
persons  to  be  appointed,  by  reason  of  a  possible  conflict 
between  their  duty  and  interest.  Near  relatives  and  connec- 
tions, like  husband  and  wife,  are  also  objectionable  as  trustees, 
as  by  reason  of  affection  and  influence  frequent  breaches  of 
trust  may  happen,  and  other  irregular  proceedings  are  always 
to  be  feared ;  but  there  is  no  absolute  rule  of  law  that  forbids 
such  appointments,  and  they  are  sometimes  inevitable  ^  or 
necessary. 

III.  WTio  may  he  Cestuis  que  trust. 

§  60.  As  a  general  rule,  equity  follows  the  law,  and  all 
persons  who  are  capable  of  taking  the  legal  title  to  property 
may  take  the  equitable  title  as  cestuis  que  trust,  through  the 
medium  of  a  trustee.^ 

§  61.  A  trust  may  be  declared  in  favor  of  the  Crown.  By 
the  old  law  the  king  could  take  the  use  of  real  estate  only 
by  matter  found  of  record ;  ^  but  Mr.  Hill  says  that  it  has 
never  been  decided  that  a  court  of  chancery  would  refuse  to 
execute  a  trust  in  land  in  favor  of  the  Crown,  if  found  other- 
wise than  by  matter  of  record.*  The  king  can  take  personal 
property  as  cestui  que  trust,  in  the  same  manner  as  a  private 
person.^ 

§  62.  The  State  may  be  a  cestui  que  trust,  and  when  there 
are  no  statutes  to  forbid  it,  property  may  be  given  to  trustees 
for  the  use  of  the  State  or  the  United  States  in  the  same  man- 
ner as  for  the  use  of  individuals.     A  deed  to  a  trustee  and  his 

1  Wilding  V.  Bolder,  21  Beav.  222 ;  Ex  parte  Glutton,  17  Jur,  988.  See 
also  In  re  Tempest,  Law  Rep.  1  Ch.  48.5. 

2  Sand,  on  Uses,  370 ;  Lewin  on  Trusts,  35 ;  Hill  on  Trustees,  52 ; 
Trotter  v.  Blocker,  Porter,  269. 

2  Bacon  on  Uses,  60  ;  Gilbert  on  Uses,  44,  204. 

4  Hill  on  Trustees,  52;  Rogers  v.  Rogers,  18  Hun  (N.  Y.),409;  Moke 
V.  Norrie,  21  Hun  (N.  Y.),  128. 

5  Middleton  v.  Spicer,  1  Bro.  Ch.  201 ;  Brummel  v.  McPherson,  5  Russ. 
264;  Nightingale  v.  Goulbourne,  5  Hare,  484;  2  Phill.  594;  INIitford  v. 
Reynolds,  1  Phill.  185;  Ashton  v.  Langdale,  4  Eng.  L.  &  Eq.  80. 

42 


CHAP.  II.]  ALIENS,    ETC.  [§  64. 

heirs  in  trust  for  the  State  of  South  Carolina  was  held  to 
vest,  by  the  statute  of  uses,  the  whole  legal  title  in  the  State.^ 
And  a  deed  to  trustees  in  trust  to  sell  and  apply  the  proceeds 
to  pay  a  debt  due  to  the  United  States  from  the  grantor  is 
valid,  notwithstanding  the  statute  which  forbids  the  purchase 
of  any  land  on  account  of  the  United  States,  unless  authorized 
by  act  of  Congress.^ 

§  63.  If  there  are  statutes,  like  the  statutes  of  mortmain, 
which  prevent  corporations  from  taking  the  legal  title  to  lands, 
they  cannot  evade  the  statutes  by  taking  the  legal  title  to 
trustees  and  the  beneficial  interest  to  themselves ;  thus  they 
cannot  be  cestuis  que  trust  in  lands  the  legal  title  to  which 
they  are  not  licensed  or  enabled  to  take.^  They  can  be  the 
cestuis  que  trust  of  personal  property,  to  the  same  extent  as 
individuals.^  So  voluntary  associations  may  be  cestuis  que 
trust  of  personal  property,  and  if  such  associations  have  an 
authorized  agent,  treasurer,  or  secretary,  the  trustees  may 
act  under  his  directions  in  performing  the  trust.^ 

§  64.  If  an  alien  is  made  the  cestui  que  trust  of  land  he 
may  enjoy  it  as  against  all  but  the  State ;  but  the  State  can 
at  any  time  claim  the  equitable  interest.^  This  rule  applies 
where  a  mere  naked  trust  is  created  in  a  trustee  for  the  bene- 
fit of  an  alien.  But  if  the  trustee  is  to  do  anything  with  the 
land,  that  is,  if  the  trust  is  executory,  the  court  will  do  noth- 
ing to  transfer  the  right  of  the  alien  to  the  State.  As  where 
a  testator  directed  lands  to  be  sold  and  the  proceeds  divided 

1  Lamar  v.  Simpson,  1  Rich.  Ch.  71. 

2  Neilson  v.  Lagow,  12  How.  107;  3  Stat,  at  Large,  568,  May  1,  1820. 

3  Hill  on  Trustees,  52  ;  Lewin  on  Trusts,  36.  *  Ibid. 
5  Langston  v.  Gordon,  26  Gratt.  755. 

«  Dumoncel  v.  Dumoncel,  13  L-.  Eq  92;  Vin.  Ab.  Alien,  A.  8;  God- 
frey V.  Dixon,  Godb.  275;  Barrow  v.  Wadkin,  21  Beav.  1;  King  v.  Hol- 
land, Al.  16;  Styl.  21;  Burneyu.  MacDonald,  15  Sim.  6;  Rittson  v.  Stordy, 
3  Sm.  &  Gif.  230;  Attoi'ney- General  v.  Sands,  Hard.  495;  Fourdrin  v. 
Gowdy,  3  M.  &  K.  383;  Burgess  v.  Wheate,  1  Eden,  188;  Du  Hourmelin 
V.  Sheldon,  1  Beav.  79;  4  My.  &  Cr.  525;  Master  v.  De  Croismar,  11 
Beav.  184. 

43 


§  Qo.l  WHO   MAY   BE   CESTUIS   QUE   TEUST.  [CHAP.  II. 

among  certain  persons,  some  of  whom  were  aliens,  the  court 
considered  that  as  done  at  the  time  of  the  death  which  was 
ordered  to  be  done,  and  tliat  it  was  a  devise  of  mere  person- 
alty, and  it  refused  to  allow  the  Crown  to  elect  to  keep  the 
funds  in  land  in  order  to  work  a  forfeiture.^  So  where  an 
agent  to  collect  a  debt  for  an  alien  took  a  deed  of  real  estate 
in  trust  to  sell  and  pay  the  proceeds  to  the  alien  creditor,  the 
heirs  of  the  agent  were  ordered,  having  sold  the  land,  to  pay 
the  proceeds  to  the  principal.^  But  where  an  alien  paid  the 
money  for  lands,  and  took  the  deed  in  the  name  of  a  citizen 
as  trustee,  the  trustee  was  adjudged  to  hold  the  land  in  trust 
for  the  commonwealth.^  Equity  will  not  raise  a  resulting  trust 
in  favor  of  an  alien.*  Nor  will  it  allow  a  legacy  given  to  an 
alien  to  be  charged  upon  real  estate,^  nor  lands  liable  to 
escheat  to  be  sold  for  the  payment  of  debts  in  order  that 
aliens  may  take  their  legacies  out  of  the  personalty.^  Aliens 
may  be  the  cestuis  que  trust  of  personal  property  without  ob- 
jection ;''  and  trustees  for  aliens,  and  alien  cestuis  que  trust 
may  maintain  actions  in  our  courts  to  maintain  their  rights 
m  the  trust  property.^ 

§  65.  There  is  another  class  of  cases  that  illustrates  the 
principle  that  the  beneficial  donee  of  property  cannot  take 
as  cestui  que  trust,  if  he  is  prohibited  from  taking  the  legal 

1  Burney  v.  MacDouald,  15  Sim.  14,  Rittson  v.  Stordy,  3  Sm.  &  Gif. 
240;  Du  Hourmelin  v.  Sheldon,  1  Beav.  79;  4  My.  &  Cr.  525.  And  see 
Master  v.  De  Croismai",  11  Beav.  184;  Barrow  v.  Wadkin,  24  Beav.  1; 
Craig  V.  Leslie,  3  Wheat.  563;  Austin  v.  Brown,  6  Paige,  448;  Neilson  v. 
Lagow,  12  How.  107;  Commonwealth  v.  Martin,  5  Munf.  117;  Meakings 
V.  Cromwell,  1  Selden,  136. 

2  Austin  V.  Brown,  6  Paige,  448;  McCaw  v.  Galbrath,  7  Rich. 
(Law)  74. 

3  Hubbard  v.  Goodwin,  3  Leigh,  492. 

*  Leggett  V.  Dubois,  5  Paige,  Ch.  114;  Phillips  v.  Crammond,  2  Wash. 
C.  C.  441.  See  Taylor  v.  Benham,  5  How.  270,  and  Farley  v.  Shippen, 
Wythe,  135. 

6  Atkins  V.  Kron,  2  Ired.  Eq.  423. 
^  Trezavant  v.  Howard,  5  Des.  87. 
^  Bradwell  v.  Weeks,  1  Johns.  Ch.  206. 

*  Hamersley  v.  Lambert,  2  Johns.  Ch.  508. 

44 


CHAP.  II.]  WHO   MAY   BE   CESTUIS   QUE   TRUST.  [§  66. 

title  to  that  property ;  as  where  a  slave  is  prohibited  from 
holding  property,  he  cannot  be  made  a  cestui  que  trust  of 
property.^  In  Virginia,  a  free  negro  was  prohibited  from 
holding  slaves,  and  it  was  held  that  he  could  not  be  a  cestui 
que  trust  of  slaves.^  So  where  emancipation  was  forbidden, 
a  slave  could  not  be  the  cestui  que  trust  of  his  own  freedom.^ 
But  in  Mississippi  it  was  held  that  land  purchased  with  money 
furnished  by  a  slave  with  the  acquiescence  of  her  master,  and 
the  title  taken  in  the  name  of  a  freeman,  was  held  in  trust 
for  the  slave  after  her  actual  emancipation  by  living  in  Ohio, 
and  that  the  trust  could  be  enforced  against  all  persons  who 
took  the  land  with  notice  of  the  facts.*  So  where  an  indi- 
vidual took  stock  in  trust  for  a  corporation  that  had  no  right 
to  hold  shares  in  another  corporation,  it  was  held  that  such 
shares  did  not  go  to  the  assignees  upon  the  bankruptcy  of  the 
individual,  but  that  they  must  be  disposed  of  as  the  corporation, 
as  cestui  que  trust,  should  direct.^ 

§  6Q.  But  in  charitable  trusts  the  cestuis  que  trust  are  not, 
and  need  not  be,  capable  of  taking  the  legal  title,  as  when 
property  is  given  in  trust  for  the  poor  of  a  parish,  or  for  the 
education  of  youth,  or  for  pious  uses,  or  for  any  charitable 
purpose,  the  beneficiaries  are  generally  unknown,  uncertain, 
changing,  and  incapable  of  taking  or  dealing  with  the  legal 
title  ;  but  such  trusts  are  valid  in  equity,  and  courts  of  equity 
will  administer  them  and  protect  the  rights  of  the  cestuis  que 
trust.^  And  in  trusts  not  charitable  it  is  not  always  neces- 
sary that  the  cestui  que  trust  should  be  in  existence  at  the 
time  of  the  creation  of  the  trust ;  as  a  devise  to  a  father  in 
trust  for  accumulation  for  his  children  lawfully  begotten  at 

1  Skrine  v.  Walker,  3  Rich.  Eq.  262;  Pool  v.  Harrison,  18  Ala.  514. 

2  Dunlap  V.  Harrison,  14  Gratt.  251. 

8  Trotter  v.  Blocker,  Porter,  269;  Graves  v.  Allen,  13  B.  Monr.  190. 

^  Leiper  v.  Hoffman,  26  Miss.  615;  and  see  Frazier  v.  Frazier,  2  Hill, 
Ch.  305;  Ross  V.  Duncan,  Freem.  Ch.  603;  Osterman  i?.  Baldwhi,  6  Wal. 
116. 

6  Great  Eastern  Railw.  Co.  v.  Turner,  L.  R.  8  Ch.  149;  Ex  parte 
Watkins,  2  Mont.  &  A.  348. 

®  Post,  chapter  on  Charitable  Trusts, 

45 


§  6Q.'\  WHO   MAY   BE   CESTDIS   QUE   TRUST.  [CHAP.  II. 

the  time  of  his  death  was  held  to  be  good,  although  the  father 
liad  no  children  at  the  time  of  the  vesting  of  the  funds  in 
him  as  trustee.^  So  an  illegitimate  child  born,  or  in  ventre 
sa  mere,  may  be  a  cestui  que  trust  ;^  but  a  trust  for  illegiti- 
mate children  to  be  thereafter  begotten  will  not  be  enforced, 
as  being  against  good  morals.^  Nor  will  a  court  of  equity 
establish  or  execute  a  trust  that  is  founded  upon  a  considera- 
tion that  is  fraudulent,  or  malum  in  se,  or  malum  prohibitum, 
or  immoral,  or  corrupt,  or  contrary  to  public  policy.*  But  a 
trust  not  charitable  created  in  prcesenti  for  cestuis  que  trust 
does  not  take  effect  until  the  cestuis  que  trust  are  identified ; 
as  where  land  was  conveyed  under  articles  of  agreement  in 
trust  for  the  subscribers  thereto,  the  title  of  the  grantor  was 
not  divested  mitil  there  were  subscribers.^  In  some  cases  a 
person  is  capable  of  taking  an  equitable  interest,  in  a  manner 
in  which  the  legal  interest  could  not  be  limited.  Thus  at 
law  no  property  can  be  so  limited  to  a  married  woman  as  to 
ex-clude  the  legal  rights  of  the  husband ;  but,  by  way  of 
trust,  property  can  be  so  given  to  her  use  as  to  place  it 
entirely  beyond  the  right  of  enjoyment  by  the  husband.^  A 
trust  for  the  heirs  of  A.  is  valid  as  a  trust  for  the  children 
of  A.7 

1  Ashurst  V.  Given,  5  Watts  &  S.  329;  Carson  v.  Carson,  1  "Wins. 
(X.  C.)  24. 

2  Gabb  V.  Prendergast,  3  Eq.  R.  648  ;  Pratt  v.  Flamer,  7  Har.  &  J.  10; 
Gardner  v.  Heyer,  2  Paige,  11;  Collins  v.  Hoxie,  9  Paige,  81;  In  re  Con- 
nor, 2  Jones  &  Lat.  456;  Evans  v.  Davies,  7  Hare,  498;  Owen  v.  Bryant, 
21  L.  J.  Ch.  860. 

3  Medworth  v.  Pope,  27  Beav.  21;  Wilkinson  v.  Wilkinson,  1  Younge 
&  C.  Ch.  Ca.  657 ;  Pratt  v.  Mathew,  22  Beav.  528  ;  Howarth  v.  Mills,  L.  R. 
2  Eq.  389. 

*  Ownes  V.  OwTies,  8  C.  E.  Green,  60;  Battinger  v.  Budenbecker,  63 
Barb.  404 ;  69  Barb.  395. 

6  Urkett  V.  Coryell,  5  W.  &  S.  61. 

6  Lewin  on  Trusts,  37. 

7  Flint  V.  Steadman,  36  Vt.  210. 

46 


CHAP.  II.]  CHOSES    IN    ACTION.  [§  68. 

IV.    What  Property  may  he  the  Subject  of  a  Trust. 

§  67.  Every  kind  of  valuable  property,  both  real  and  per- 
sonal, that  can  be  assigned  at  law  may  be  the  subject-matter 
of  a  trust.  Every  kind  of  vested  right  which  the  law  recog- 
nizes as  valuable  may  be  transferred  in  trust,  as  a  receipt  for 
a  medicine,^  the  copyright  of  a  book,^  a  patent  right,^  a  trade 
secret,'^  or  growing  crops.^ 

§  68.  At  common  law  no  possibility,  right,  title,  nor  chose 
in  action  could  be  granted  or  assigned  to  strangers.^  But 
in  equity  the  rule  is  different,  and  choses  in  actions!^  expec- 
tancies,^ contingent  interests,^  and  even  possibilities  ^^  may  be 
assigned,  and  a  valid  trust  created  in  them.  Equitable  re- 
versionary interests  stand  upon  the  same  ground. ^^  Property 
not  owned  by  the  assignor  at  the  time,  and  not  even  in  esse, 
may  be  assigned  in  equity  ;  ^  and  a  valid  trust  may  be  created 
in  a  naked  power  or  authority .^^ 

1  Green  v.  Folgham,  1  Sim.  &  St.  398. 

2  Sims  V.  Marryal,  17  Q.  B.  281. 

8  Russell's  Patent.  2  De  G.  &  Jon.  130. 

4  Morrison  v.  Moat,  6  Eng.  L.  &  Eq.  14-  9  Hare,  241. 

s  Robinson  v.  Maulden,  11  Ala.  908;  Grantham  v.  Hawley,  Hob.  132; 
Patch  V.  Tutin,  15  M.  &  W.  110;  McCarty  v.  Blevins,  5  Yerg.  195. 

«  Lampet's  Case,  10  Coke,  48;  Thallhimer  v.  Brinckerhoff,  3  Cow.  623. 

'  Row  V.  Dawson,  1  Ves.  322;  Ryall  v.  RoUes,  1  Ves.  348;  Townsend 
V.  Windham,  2  Ves.  6;  Ex  parte  Alderson,  1  Mad.  53;  Burn  v.  Car- 
valho,  4  My.  &  Cr.  690;  Yeates  v.  Grover,  1  Ves.  Jr.  280;  Ex  parte  South, 
3  Swans.  393;  Morton  v.  Naylor,  1  Hill,  583;  Clemson  v.  Davidson,  5 
Binn.  392. 

8  Fitzgerald  v.  Vestal,  4  Sneed,  258;  Hobson  v.  Trevor,  2  P.  Wms.  191; 
Beckley  v.  Newland,  Id.  182;  Wetherhed  v.  Wetherhed,  2  Sim.  183; 
Douglass  V.  Russell,  4  Sim.  184;  Langton  v.  Horton,  1  Hare,  549. 

9  Ibid. ;  Varish  v.  Edwards,  1  Hoff.  Ch.  382. 
"  Ibid. 

"  Ibid.;  Voyle  v.  Hughes,  2  Sm.  &  Gif.  18;  Kekewich  v.  Manning, 
1  De  G.,  M.  &  G.  187. 

"  Pennock  v  Coe,  23  How.  117;  Mitchell  v.  Winslow,  2  Story,  630; 
6  Law  Rep.  347;  Holroyd  v.  Marshall,  2  Gif.  382;  2  De  G.,  F.  &  J.  596; 


"  Brown  v.  Higgs,  8  Ves.  570. 

47 


§  G^-l  PROPERTY  OF  A  TRUST.  [CHAP.  II. 

§  69.  But  there  are  some  eJioses  in  actions,  rights,  clahns, 
and  interests  that  cannot  be  assigned  in  equity ;  either  be- 
cause some  statute  prohibits,  or  because  it  is  against  public 
policy  to  allow  assignments  of  them  to  strangers.  Thus  an 
officer  in  the  army  cannot  assign  or  pledge  his  commission,^ 
nor  his  full  or  half  pay.^  A  judge  cannot  assign  his  salary  ;3 
nor  can  a  pension  given  for  the  honorable  support  of  the 
dignitv  of  a  title  be  assigned.*  The  principle  seems  to  be  that 
when  a  salary,  annuity,  or  pension  is  given  by  the  State  for 
the  support  of  its  own  dignity  and  the  administration  of  its 
affairs,  it  is  not  becoming  that  its  officers  should  deprive 
themselves  of  the  means  of  support  which  it  gives  to  them ; 
but  a  pension  or  annuity  for  past  services  may  be  assigned.^ 
The  mere  right  to  file  a  bill  in  equity  for  a  fraud  committed 
upon  the  assignor,  or  to  sue  for  a  tort,  cannot  be  assigned  and 
a  trust  created  in  such  rights.^     A  mere  naked  expectancy 

9  Jur.  N.  s.  213;  33  L.J.  Ch.  193;  Hope  v.  Hayley,  5  El.  &  Bl.  845;  Calk- 
ins r.  Lockwood,  17  Conn.  154;  Langton  v.  Horton,  1  Hare,  549;  Brooks 
V.  Hatch,  6  Leigh,  534;  Leslie  v.  Guthrie,  1  Bing.  X.  C.  697;  Field  v. 
Mayor  of  N.  Y.,2  Selden,  179;  Robinson  v.  Macdonald,  5  M.  &  S.  228; 
In  re  Ship  Warre,  8  Price,  269;  Stewart  v.  Kirkland,  19  Ala.  162;  Hinkle 
V.  Wanzer,  17  How.  353;  Mc Williams  v.  Nisby,  2  S.  &  R.  509;  Wilson's 
Estate,  2  Barr,  325. 

1  Collier  i\  Fallon,  1  Turn.  &  Rus.  459;  and  see  L'Estrange  v.  L'Es- 
trange,  1  Eng.  L.  &  Eq.  153. 

•2  Stone  V.  Lidderdale,  2  Aust.  533;  Priddy  v.  Rose,  3  Mer.  102;  Tun- 
stall  v.  Boothby,  10  Sim.  540;  Flarty  v.  Odium,  3  T.  R.  681;  Lidderdale 
V.  jNlontrose,  4  T.  R.  248. 

3  Arbuthnot  v.  Norton,  5  Moore,  P.  C.  C.  219;  Cooper  v.  Reilly,  2  Sim. 
560;  Palmer  v.  Bate,  6  Moore,  28;  2  Brod.  &  Bing.  673;  Hill  i-.  Paul,  8 
CI.  &  Fin.  295.  But  in  State  Bank  v  Hastings,  15  Wis.  75,  it  was  held 
that  a  judge  could  assign  his  salary. 

*  Davis  V.  Marlborough,  1  Swanst  79;  McCarthy  v.  Gould,  1  Ball  & 
Beatt.  387,  Price  v.  Lovett,  4  Eng.  L.  &  Eq.  110;  Grenfell  i-.  Dean,  &c., 
2  Beav.  550.     See  also  Wells  ;;.  Foster,  8  I\L  &  W\  149,  Spooner  v.  Payne, 

10  Eng.  L.  &  Eq.  207. 

6  Alexander  v.  Wellington,  2  Rus.  &  My.  35;  Tunstall  i-.  Boothby,  10 
Sim.  452;  Feistal  v.  King's  College,  10  Beav.  491;  and  see  Berkley  v. 
King's  College,  10  Beav.  499,  and  Butcher  v.  Musgrove,  2  Beav.  550; 
Stevens  v.  Bagwell,  15  Ves.  139. 

6  Prosser  v.  Edmonds,  1  Yo.  &  Col.  481;  Gardner  v.  Adams,  12  Wend. 
297;  Dunklin  v.  Wilkins,  5  Ala.  199;  McKee  v.  Judd,  2  Ker.  G2J.  It 
48 


CHAP.  II.]  LAND   IN   A    FOREIGN   JURISDICTION.  [§  71. 

arising  from  a  peculiar  position,  such  a  position  as  that  a 
person  expects  to  make  a  favorable  bargain  and  purchase  (and 
he  employs  an  agent  to  negotiate  the  purchase,  and  such  agent 
purchases  for  another),  is  not  such  property  that  a  trust  can 
be  created  in  it.^ 

§  70.  The  question  has  been  frequently  mooted  in  courts, 
how  far  a  trust  could  be  engrafted  and  enforced  upon  foreign 
property,  or  property  beyond  the  limits  of  the  jurisdiction  of 
the  court  where  the  suit  is  pending.  In  regard  to  personal 
property  there  is  no  difficulty,  for  it  follows  the  person ;  and 
if  the  court  has  jurisdiction  over  the  parties,  it  has  jurisdiction 
over  the  subject-matter,  and  can  enforce  a  trust  or  any  other 
equity .2  If  the  personal  property  is,  however,  in  fact  beyond 
the  jurisdiction  of  the  court,  there  may  arise  some  practical 
obstructions  to  the  execution  of  the  decrees  of  the  court.^ 
Where  the  trust  is  created  by  a  judicial  decree  in  another 
State,  as  by  probate  of  a  will  in  New  York  State,  the  trustee 
is  accountable  in  the  courts  of  that  State ;  and  where  the  will 
has  not  been  proved  or  recorded  in  the  State  of  the  former, 
nor  any  letters  testamentary  or  of  administration  or  trustee- 
ship have  been  issued  there,  the  trustee  cannot  be  compelled 
to  execute  the  trust,  though  residing  in  the  State  of  the  former ; 
such  is  the  settled  law  of  Massachusetts.^  Such  a  case  differs 
entirely  from  one  in  which  the  trust  is  created  by  instrument 
inter  partes  without  judicial  decree.^ 

§  71.  As  to  lands  lying  in  a  foreign  jurisdiction,  the  court 
will  enforce  natural  equities  and  compel  the  specific  per- 
is not  intended  to  enter  into  all  the  niceties  of  the  law  of  assignments. 
An  exhaustive  statement  of  the  law  and  a  collection  of  all  the  cases  will 
be  found  in  Story's  Eq.  Jur.  §§  1040-1055,  and  3  Lead.  Ca.  in  Eq.  pp.  279- 
380  (3d  Am.  ed.). 

1  Garrow  v.  Davis,  15  How.  277. 

2  Hill  V.  Reardon,  2  Russ.  608;  Hill  on  Trustees,  44;  Lewin  on  Trusts, 
39;  Chase  v.  Chase,  2  Allen,  101;  Mason  v.  Chambers,  4  J.  J.  Marsh. 
401. 

3  Booth  n.  Clark,  17  How.  327. 

*  Jenkins  v.  Lester,  131  Mass.  357,  and  cases  there  cited. 
5  Massie  v.  Watts,  6  Cranch,  148,  160. 

VOL.  I.— 4  49 


§  71.]  PROPERTY    OF    A    TRUST.  [CHAP.  II. 

formance  of  contracts,  if  the  parties  are  within  its  jurisdic- 
tion. Thus  Lord  Eldon  allowed  a  lien  to  a  consignor  for 
advances  upon  estates  in  the  West  Indies  ;  ^  and  a  specific 
performance  of  articles  between  parties  for  the  settlement  of 
their  boundaries  was  enforced ;  ^  effect  was  given  to  an  equi- 
table mortgage  by  deposit  of  the  title-deeds  to  land  in  Scot- 
land, though  by  the  law  of  Scotland  such  deposit  created  no 
lien  ;  ^  an  account  was  ordered  of  the  rents  and  profits  of 
lands  abroad;^  and  an  absolute  sale^  or  a  foreclosure  of  a 
mortgage  ®  decreed  ;  a  fraudulent  conveyance  was  relieved 
against,'  and  injunction  granted  against  taking  possession.^ 
Chief-Justice  Marshall  said :  "  Upon  the  authority  of  these 
cases  and  others  which  are  to  be  found  in  the  books,  as  well 
as  upon  general  principles,  this  court  is  of  opinion  that  in 
case  of  fraud,  of  trust,  or  of  contract,  the  jurisdiction  of  a 
Court  of  Chancery  is  sustainable  wherever  the  person  be 
found,  although  lands  not  within  the  jurisdiction  of  that 
court  may  be  affected  by  the  decree."  ^  But  if  the  person  is 
not  within  the  jurisdiction  of  the  court,  and  the  land  is,  the 

1  Scott  v.  Nesbitt,  14  Ves  438. 

2  Penn  v.  Lord  Baltimore,  1  Ves.  444  and  Belt's  Sup. ;  Roberdeau  v. 
Rous,  1  Atk.  543,  West.  2-3,  Tullock  v.  Hartley,  1  Yo.  &  Col.  114;  Good 
V.  Good,  33  Beav.  314-,  Portarlington  v.  Soulby,  3  My.  &  K.  104;  Athol 
V.  Derby,  1  Gh.  Ca.  221. 

3  Ex  parte  Pollard,  3  Mont.  &  Ayr.  340;  Mont.  &  Chit.  239;  Norris  v. 
Chambers,  29  Beav  246;  Martin  v.  Martin,  2  R.  &  M.  507. 

^  Roberdeau  v.  Rous,  1  Atk.  543.  ^  Ibid. 

6  Toller  V.  Carteret,  2  Vern.  494. 

'  Arglasse  v.  Muschamp,  1  Vern.  75;  Archer  v.  Preston,  1  Vern.  77: 
1  Eq.  Abr.  133. 

8  Cranstown  v.  Johnston,  5  Ves.  278;  Bunbury  v.  Bunbury,  1  Beav. 
318;  Hope  v.  Carnegie,  L.  R.  1  Ch.  320. 

^  Massie  v.  Watts,  6  Granch,  160;  Farley  v.  Shippen,  Wythe,  135: 
Kildare  r.  Eustace,  1  Vern.  419;  Ward  v.  Arredoudo,  Hopk.  213:  DeKlyn 
V.  Watkins,  3  Sand.  Gh.  185;  Guerrant  v.  Fowler,  1  Hen.  &  M.  4,  Shat- 
tuck  V.  Cassidy,  3  Edw.  Ch.  152;  Xewton  v.  Bronson,  3  Ker.  587;  Sutphen 
V.  Fowler,  9  Paige,  280;  Epis.  Church  !'.  Wiley,  2  Hill,  Ch.  584;  Dickin- 
son V.  Hoomes,  8  Grat.  3.53;  Hughes  v.  Hall,  5  Munf.  431;  Vaughn  v  Bar- 
clay, 6  Whar.  392;  Watkins  r.  Holman,  16  Pet.  25;  Guild  v.  Guild,  16 
Ala.  121;  White  v.  White,  7  Gill  &  J.  208.  But  see  Lewis  v.  Xelson, 
1  McCarter,  94. 

50 


CHAP.  II.]  LAND   IN    A    FOREIGN   JURISDICTION.  [§  71, 

court  cannot  decree  a  specific  performance  of  an  agreement 
for  a  sale.i  If  a  trust  is  created  by  the  will  of  a  citizen  of 
a  particular  State,  and  his  will  is  allowed  by  the  Probate 
Court  of  that  State,  and  a  trustee  is  appointed  by  the  Probate 
Court,  courts  of  equity  will  have  jurisdiction  over  the  trust, 
although  both  the  trustee  and  the  property  are  beyond  the 
jurisdiction  of  the  court.  Chief-Justice  Bigelow,  in  determin- 
ing this  point,  said :  "  The  residence  of  the  trustee  and  cestui 
que  trust  out  of  the  commonwealth  does  not  take  away  the 
power  of  this  court  to  regulate  and  control  the  proper  admin- 
istration of  trust  estates  which  are  created  by  wills  of  citizens 
of  this  State,  and  which  have  been  proved  and  established 
by  the  courts  of  this  commonwealth.  The  legal  existence  of 
the  trust  takes  effect  and  validity  from  the  proof  of  the  will, 
and  the  right  of  the  trustee  to  receive  the  trust  fund  is  de- 
rived from  the  decree  of  the  Probate  Court.  If  the  trustee 
is  unfaithful  or  abuses  his  trust,  that  court  has  jurisdiction 
to  remove  him  in  concurrence  with  this  court  on  the  appli- 
cation of  those  beneficially  interested  in  the  estate."  ^  And 
where  A.  had  fraudulently  obtained  a  deed  of  land,  in  a  foreign 
State,  from  B.,  and  had  conveyed  it  to  C.  without  considera- 
tion, it  was  held  that  although  the  courts  of  other  States 
would  not  declare  such  deeds  to  be  nullities,  yet  they  would 
order  reconveyances  from  the  parties  before  the  court ;  and 
if  such  parties  went  beyond  the  jurisdiction,  the  court  could 
appoint  special  commissioners  to  execute  such  reconveyances.^ 
And  so  trustees  to  whom  property  has  been  conveyed  by  the 
owner  by  a  direct  conveyance  can  sue  in  any  and  all  courts 
which  have  jurisdiction  over  the  parties  or  the  subject-matter 
of  the  suit;  but  if  the  trustee  depends  upon  some  court  to 
clothe  him  with  the  office  and  title  of  trustee,  he,  like  an 
administrator  or  executor,  can  only  sue  within  the  country  or 
State  over  which  the  jurisdiction  of  the  court  appointing  him 
extends.* 

1  Spurr  V.  Scoville,  3  Cush.  578;  Meux  v.  Maltby,  2  Swanst.  277;  Fell 
V.  Brown,  2  Bro.  Ch.  276. 

2  Chase  v.  Chase,  2  Allen,  101;  Curtis  v.  Smith,  60  Barb.  9. 

8  Cooley  V.  Scarlett,  38  111.  316.  *  Curtis  v.  Smith,  6  Blatch.  537. 

51 


§  72.]  PROPERTY  OP  A  TRUST.  [CHAP.  II. 

§  72.  The  foundation  of  this  doctrine  is  the  jurisdiction 
of  the  court  over  the  person,  which  was  originally  the  only 
jurisdiction  of  courts  of  equity.^  They  cannot,  when  the  prop- 
erty is  in  a  foreign  jurisdiction,  make  a  decre-e  in  rem,  bind- 
ing upon  the  land ;  but  they  can  enter  a  decree  in  personam 
and  compel  its  performance  by  process  in  contempt ;  ^  hence 
if  the  parties  are  not  before  the  court,  or  the  court  has  no 
jurisdiction  over  them,  the  specific  performance  of  a  contract 
cannot  be  decreed ;  ^  and  if  the  court  cannot  give  relief  by 
a  decree  against  the  person,  but  must  go  further  and  make  a 
decree  to  be  executed  by  its  own  officers  against  the  land,  it 
must,  of  course,  if  the  land  is  beyond  its  jurisdiction,  refuse 
to  act.*  It  is  not  necessary  that  the  person  to  be  bound  by  a 
decree  should  be  domiciled  within  the  jurisdiction  of  the  court. 
It  will  be  sufficient  if  the  person  is  found  and  served  with 
process  within  the  jurisdiction,  and  a  ne  exeat  may  be  obtained 
to  prevent  his  departing  until  the  decree  of  the  court  is  per- 
formed ;  ^  or  if  a  person  is  prosecuting  a  suit  at  law  within 
a  jurisdiction,  a  suit  in  equity  may  be  maintained,  and  an 
injunction  may  be  decreed  against  him,  and  service  on  his 
attorney  in  the  suit  at  law  would  be  a  good  service  to  bring 
him  within  the  jurisdiction.^  So  if  courts  of  equity  have 
jurisdiction  over  the  parties  to  a  controversy,  they  can  enjoin 
them  from  proceeding  in  the  courts  of  foreign  States  or  coun- 
tries.    This  power  does  not  depend  upon  any  superintending 

1  Penn  v.  Baltimore,  1  Ves.  444;  Massie  v.  Watts,  6  Cranch,  160. 

2  Ibid. ;  White  v.  White,  7  Gill  &  J.  208;  Mead  r.  Merritt,  2  Paige,  404. 

3  Spun-  V.  Scoville,  3  Cush.  578;  Meux  v.  Maltby,  2  Swanst.  277;  Fell 
V.  Brown,  2  Bro.  Ch.  276. 

*  Morris  v.  Remington,  1  Pars.  Eq.  387;  Bank  of  Virginia  v.  Adams, 
1  Pars.  Eq.  547;  Blunt  v.  Blunt,  1  Hawks,  305;  White  v.  White,  7  Gill 
&  J.  208;  Cartwright  v.  Pettus,  2  Ch.  Ca.  214;  2  Swanst.  323  n.;  Water- 
house  V.  Stansfield,  9  Hare,  234,  10  Hare,  254;  Martin  v.  Martin,  2  R.  & 
My.  507;  Nelson  «.  Bridport,  8  Beav.  547;  Walker  v.  Ogden,  1  Dana, 
2.52;  Williams  v.  Mans,  6  Watts,  278;  Booth  v.  Clark,  17  How.  322;  Haw- 
ley  V.  James,  7  Paige,  213;  White  v.  White,  7  Gill  &  J.  208. 

5  Mitchell  V.  Bunch,  2  Paige,  606;  Baker  r.  Duniaresque,  2  Atk.  66 

Howden  v.  Rogers,  1  Ves.  &  B.  129;  Flack  v.  Holm,  1  Jac.  &  \\.  406 

Grant  v.   Grant,  3  Russ.  598;  Woodward  v.  Schatzell  3  Johns.  Ch.  412 

Gilbert  v.  Colt,  1  Hopk.  496.  «  Chalmers  v.  Hack,  19  Me.  124, 

52 


CHAP.  II,]  LAND    IN    A    FOREIGN   JURISDICTION.  [§  72. 

power  of  the  courts  of  one  country  over  those  of  another, 
which  does  not  exist ;  but  it  is  founded  wholly  upon  the 
power  which  courts  of  equity  have  over  all  litigants  within 
its  actual  jurisdiction.  This  jurisdiction  is  in  personam,  and 
the  decrees  are  directed  against  the  persons  or  parties.  If  the 
decree  should  be  disregarded,  and  a  litigant  should  prosecute 
a  suit  in  a  foreign  tribunal,  no  action  could  be  taken  against 
the  agents,  officers,  or  judges  of  such  foreign  tribunal,  but  the 
remedy  would  be  confined  to  proceeding  against  the  party 
who  has  proceeded  in  contempt  of  the  injunction.^  There  is, 
however,  an  exception  to  this  practice  in  the  case  of  the 
courts  of  the  several  States  and  of  the  courts  of  the  United 
States.  These  courts  have  concurrent  jurisdiction  over  many 
causes ;  and  to  prevent  unpleasant  conflicts  of  jurisdiction,  it 
has  been  held,  upon  grounds  of  public  policy,  that  they  have 
no  power  to  restrain  or  enjoin  suitors  from  pursuing  their 
rights  in  the  courts  of  their  choice,  whether  of  the  State  or 
of  the  United  States.^ 

1  Story,  Eq.  Jur.  §§  899,  900;  Dehon  v.  Foster,  4  Allen,  545;  Great 
Falls  V.  Worster,  23  N.  H.  470  ;  Bank  v.  Rutland,  28  Vt.  470 ;  Hays  v. 
Ward,  4  Johns.  Ch.  123;  Vail  v.  Knapp,  49  Barb.  299;  Massie  v.  Watts, 
6  Cranch,  158,  166;  Angus  v.  Angus,  West  Ch.  23;  Moody  v.  Gay,  15 
Gray,  457;  Sutphen  v.  Fowler,  9  Paige,  282;  Mitchell  v.  Bunch,  2  Paige, 
615;  Mackintosh  v.  Ogilvie,  4  T.  R.  193  n.,  3  Swanst.  365  n.;  Cranstown 
V.  Johnston,  3  Ves.  179,  5  Ves.  277;  Bunbury  v.  Bunbury,  1  Beav.  318; 
Carron  Iron  Co.  v.  Maclaren,  5  H.  L.  Cas.  416;  Beckford  v.  Kemble,  1  S. 
&  S.  7;  Harrison  v.  Gurney,  2  Jac.  &  W.  563;  Bowles  v.  Orr,  1  Y.  «fe  C. 
464;  Portarlington  v.  Soulby,  3  My.  &  K.  104;  Duncan  v.  McCalmont, 
3  Beav.  409;  Graham  v.  Maxwell,  1  Mac.  &  Gord.  71;  Briggs  v.  French, 
1  Sumn.  504;  Dobson  v.  Pearce,  1  Duer,  142,  2  Kern.  1.56;  Pearce  v.  01- 
ney,  20  Conn.  544  ;  Cage  v.  Cassidy,  23  How.  109,  117;  Marsh  v.  Putnam, 
3  Gray,  566;  Brigham  w.  Henderson,  1  Cush.  430;  Beal  v.  Burchstead,  10 
Cush.  523;  Maclaren  v.  Stainton,  16  Beav.  286.  The  case  of  Carroll  v. 
Farmers'  Bank,  Harrington,  197,  is  not  followed. 

2  Diggs  V.  Walcott,  4  Cranch,  179 ;  McKim  v.  Voorhies,  7  Cranch,  279  ; 
Sumner  v.  Marcy,  3  W.  &  M.  119;  Coster  v.  Griswold,  4  Edw.  Ch.  377; 
English  V.  Miller,  3  Rich.  Eq.  320.  See  also  Mead  v.  Merritt,  2  Paige, 
402;  Bicknell  v.  Field,  8  Paige,  440;  Burgess  v.  Smith,  2  Barb.  Ch.  276; 
Grant  v.  Quick,  2  Sandf.  612;  Croft  v.  Lathrop,  2  Wall.  Jr.  103;  Cruik- 
shanks  v.  Roberts,  6  Madd.  104;  Bushby  v.  Munday,  5  Madd.  307;  Jones 
V.  Geddes,  1  Phillips  Ch.  725. 

53 


EXPRESS   TRUSTS,   ETC.  [CHAP.  III. 


CHAPTER   III. 

EXPRESS  TRUSTS,  AND  HOW  EXPRESS  TRUSTS  ARE  CREATED  AT 
COMMON  LAW,  SINCE  THE  STATUTE  OF  FRAUDS,  AND  IN  PER- 
SONAL PROPERTY,  AND  HEREIN  OF  VOLUNTARY  CONVEYANCES 
OR   SETTLEMENTS   IN   TRUST. 


§  73.   Division  of  trusts,  according  to  the  manner  of  their  creation. 
§§  74^77.   Trusts  at  common  law. 
§  74.  At  common  law,  a  writing  not  necessary  to  convey  land. 

§  75.  Uses  might  also  be  created  without  writing,  and  so  may  trusts,  in 

States  where  the  statute  of  frauds  is  not  in  force. 
§  76.  Parol  cannot  control  a  written  trust  nor  engraft  an  express  trust  on  an 

absolute  conveyance. 
§  77.  Same  rule  as  to  trusts  created  bj'  parol. 

§  78.   The  statute  of  frauds,  and  its  form  in  various  States. 
§  79.  Effect  of  the  statute  upon  the  creation  of  express  trusts. 

§§  80,  81.  Effect  of  the  different  forms  of  the  words  of  the  statutes  in  the  several 

States. 
§  82.  How  express  trusts  may  be  proved  or  manifested  under  the  statute. 

§  83.  Certainty  of  the  terms  of  the  trust,  and  the  person  by  whom  it  is  to  be 

declared. 
§§  84,  85.  Trusts  declared  or  proved  by  answers  in  chancery. 

§  86.  Trust  in  personal  property  may  be  created  by  parol. 

§§  87,  88.  Trusts  arising  from  gifts  mortis  causa  and  for  charitable  uses. 

§  89.   Statute  of  wills,  and  the  execution  of  wills. 
§  90.  Trust  cannot  be  created  in  a  will,  unless  it  is  properly  executed,  to  pass 

the  property. 
§§  91,  92.         But  might  be  manifested  by  a  recital  in  a  will  not  properly  exe- 
cuted. 
§  93.  The  effect  of  the  necessity  of  probate  of  wills. 

§  94.  Parol  evidence  cannot  convert  a  bequest  in  a  will  into  a  trust.     An 

executor  is  a  trustee  of  the  surplus. 
§  95.   When  a  trust  is  completely  created. 

An  agreement  upon  a  valuable  and  legal  consideration  will  be  carried 

into  effect  as  a  trust  or  a  contract. 
§§  96-98.  If  a  complete  trust  is  created  without  consideration,  it  will  be  carried 

into  effect. 
§  97.  But  if  anything  remains  to  be  done  to  complete  the  trust,  it  will  not  be 

carried  into  effect,  if  without  consideration. 
§  99.  Whether  a  lawful  trust  is  completely  created  or  not  a  question  of  fact 

in  each  case. 

64 


CHAP.  III.]  AT    COMxMON    LAW.  [§  74. 

§  100.  Trust  for  a  stranger  without  consideration  not  completed  without  trans- 

fer of  the  legal  title. 
§  101.  But  if  the  legal  title  cannot  be  transferred,  a  different  rule  will  apply. 

§  102.  If  the  subject  of  the  proposed  trust  is  an  equitable  interest,  the  legal 

title  need  not  be  transferred. 
§  103.  The  instrument  of  trust  need  not  be  delivered. 

§  105.  Notice  not  necessary  to  trustee  or  cestui  que  trust. 

§  104.   If  once  perfected  cannot  be  destroyed,  though  voluntary. 
§§  106,  107.  Voluntary  settlements  upon  wife  and  children. 
§  108.  When  they  will  not  be  enforced. 

§  109.  Tendency  of  the  rule  in  the  United  States. 

§  110.  Marriage  a  valuable  as  well  as  meritorious  consideration. 

§  111.   Effect  of  a  seal. 
§  111  a.   New  York  Statute  Law. 

§  73.  Having  considered  who  may  be  the  parties  to  a  trust, 
and  what  may  be  the  subject-matter  of  it,  it  is  now  to  be  con- 
sidered in  what  manner  a  trust  may  be  created,  or  how  it 
may  arise.  Trusts  are  divided  in  this  respect  into  direct  or 
express  trusts,  implied,  resulting,  and  constructive  trusts. 
Direct  or  express  trusts  are  created  by  the  direct  or  express 
words  of  a  grantor  or  settlor.  Implied,  resulting,  and  con- 
structive trusts  arise  by  operation  of  law  upon  the  transac- 
tions of  the  parties,  and  they  will  be  hereafter  discussed.  This 
chapter  will  treat  of  the  creation  of  direct  or  express  trusts. 
In  this  connection  it  will  be  necessary  to  inquire :  (1)  how 
trusts  were  created  in  lands  at  common  law  prior  to  the  stat- 
utes of  frauds  and  of  wills ;  (2)  how  trusts  are  created  in 
lands  since  the  statutes ;  (3)  how  trusts  may  be  created  in 
personal  property ;  and  (4)  the  effect  of  a  voluntary  con- 
veyance or  declaration  of  trust. 

§  74.  At  common  law  a  deed  in  writing  was  not  necessary 
to  transfer  land.  What  was  called  a  feoffment  was  the  com- 
mon and  earliest  mode  of  conveyance.  The  feoffment  was  a 
short  and  simple  charter,  and  was  accompanied  by  livery  of 
seizin ;  the  feoffor  went  upon  the  land  in  the  presence  of  the 
freeholders  of  the  neighborhood  with  the  charter,  and  made 
a  manual  delivery  to  the  feoffee  of  some  symbolical  thing  in 
the  name  of  delivering  seizin,  or  ownership  and  possession  of 
all  the  lands  named  in  the  charter.  But  not  even  this  deed 
or  charter  was  necessary.      The  land  could  be  conveyed  by 

55 


§  75.]  EXPRESS   TRUSTS,    ETC.  [CHAP.  III. 

mere  livery  of  seizin  in  the  presence  of  the  freeholders  of  the 
neighborhood,  who  might  be  called  upon  to  witness  the  act. 
The  feoffment  and  livery  of  seizin  operated  upon  and  trans- 
ferred the  possession,  and  it  barred  the  feoffor  from  all  future 
right  or  possibility  of  right  in  the  land,  and  vested  an  estate 
in  freehold  in  the  feoffee.^ 

§  75.  It  has  been  a  mooted  question  whether  at  common- 
law  uses  could  be  raised  by  parol,  or  even  by  deed  without 
seal,  upon  a  conveyance  of  lands.^  But  there  seems  to  be  no 
good  reason  for  the  doubt.  As  the  estate  itself  could  be 
transferred  without  writing,  it  would  seem  to  follow  that  uses 
declared  at  the  time  in  the  presence  of  Avitnesses  might  be 
effectually  established.  Mr,  Sanders  says  that  in  their  com- 
mencement uses  were  of  a  secret  nature,  and  were  usually 
created  by  a  parol  declaration.^  Mr.  Lewin  says  that  trusts 
like  uses  are  in  their  own  nature  averrable,  i.  e.,  may  be  de- 
clared by  word  of  mouth  without  writing,  in  the  absence  of  a 
statute  requiring  it ;  as  if  an  estate  had  been  conveyed  unto 
and  to  the  use  of  A.  and  his  heirs,  a  trust  might  have  been 
raised  by  parol  in  favor  of  B.*  Lord  Chief-Baron  Gilbert 
reconciled  most  of  the  conflicting  cases  by  stating  the  law 
thus:  "At  common  law  a  use  might  have  been  raised  by 
words  upon  a  conveyance  that  passed  the  possession  by  some 
solemn  act,  as  a  feoffment ;  but  where  there  was  no  such  act, 
then  it  seems  a  deed  declaratory  of  the  use  was  necessary ; 
for  as  a  feoffment  might  be  made  at  common  law  by  parol,  so 
might  the  uses  be  declared  by  parol.  But  where  a  deed  was 
necessary  for  passing  the  estate  itself,  it  was  also  requisite  for 
the  declaration  of  the  uses.  Thus  a  man  could  not  covenant 
to  stand  seized  to  uses  without  a  deed  ;  but  a  bargain  and  sale 

1  4  Kent,  480,  481;  2  Sand.  Uses  and  Trusts,  1-8. 

2  2  Story,  Eq.  Jur.  §  971 ;  Hill  on  Trustees,  55. 

3  1  Sand,  on  Uses,  14,  218  (2d  Am.  ed.). 

*  Lewin  on  Trusts,  41.  See  Fordyce  v.  Willis,  2  Bro.  Ch.  587;  Benbow 
V.  Townsend,  1  My.  &  K.  506;  Bayley  v.  Boulcott,  4  Russ.  347;  Crabb  v. 
Crabb,  1  My.  &  K.  511;  Kilpin  v.  Kilpin,  Id.  520;  Bellasis  v.  Compton, 
2  Vern.  294;  Thruxton  v.  Attorney-General,  1  Vern.  341. 

66 


CHAP.  III.]  AT    COMMON    LAW.  [§  75. 

by  parol  has  raised  a  use  without."  ^  Lord  Thurlow  observed 
that  "he  had  been  accustomed  to  consider  uses  as  averrable ; 
but  perhaps  when  looked  into,  the  cases  may  relate  to  feoff- 
ment, and  not  to  conveyances  by  bargain  and  sale  or  lease 
and  release."  ^  And  Duke  says  expressly,  "  that  when  the 
things  given  may  pass  without  deed,  then  a  charitable  use 
may  be  averred  by  witnesses  ;  but  where  the  things  cannot 
pass  without  deed,  there  charitable  uses  cannot  be  averred 
without  a  deed  proving  tlie  uses."  ^  This  question  is  almost 
purely  speculative  in  the  United  States,  where  the  statute  of 
frauds  is  perhaps  universally  adopted,  and  all  conveyances  of 
land  and  of  interests  in  land  must  be  by  deed  acknowledged 
and  recorded ;  but  it  may  arise  when  questions  arise  upon 
transactions  prior  to  the  passage  of  the  statute,  as  it  arose 
in  Ohio  upon  a  conveyance  before  1810,  the  time  when  the 
statute  of  frauds  was  adopted  in  that  State ;  and  it  was  deter- 
mined that  a  trust  in  land  could  be  created,  at  common  law, 
by  parol,*  and  as  the  seventh,  eighth,  and  ninth  sections  were 
omitted  from  the  Ohio  statute,  a  trust  in  real  estate  may  still 
be  created  by  parol.^  The  same  question  arose  in  Connecti- 
cut, and  it  was  denied  that  at  common  law  a  trust  in  lands 
could  be  raised  by  parol.  The  court  said  that  the  rules  of 
evidence  as  well  as  the  statute  prevented  it.^  In  some  other 
States  the  statute,  or  at  least  the  seventh  section  of  the  statute, 
has  not  been  adopted  ;  and  in  those  States  it  has  been  deter- 
mined that  trusts  in  land  can  be  proved  by  parol,  as  in  Texas,'^ 

1  Gilbert  on  Uses,  270;  Adlington  v.  Cann,  3  Atk.  141. 

2  Fordyce  v.  Willis,  3  Bro.  Ch.  587. 

8  Duke  on  Char.  141;  Adlington  v.  Cann,  3  Atk.  141. 

*  Fleming  v.  Donohoe,  5  Ohio,  250;  but  see  Starr  v.  Starr.  1  Ohio,  321 ; 
Ready  t-.  Kearsley,  14  Mich.  215:  Mclntire  v.  Skinner,  4  Greene,  89. 

8  Harvey  v.  Gardner,  41  Oh.  St.  646. 

^  Dean  v.  Dean,  6  Conn.  287.  Contra,  Ready  v.  Kearsley,  14  Mich. 
215. 

'  Miller  v.  Thatcher,  9  Tex.  482;  Hale  v.  Layton,  16  Tex.  262;  Bailey 
V.  Harris,  19  Tex.  102;  Osterman  v.  Baldwin,  6  Wallace,  116;  Leakey  v. 
Gunter,  25  Tex.  400;  Grooves  v.  Rush,  27  Tex.  231 ;  Dunham  v.  Chatham, 
21  Tex.  231;  Creiiey  v.  Dupree,  21  Tex.  20;  Pierce  v.  Fort,  60  Tex.  464, 
and  cases  cited. 

57 


§  7G.]  EXPRESS   TRUSTS,   ETC.  [CHAP.  III. 

North  Carolina,^  Teimessee,^  and  Virginia.^  In  Pennsylvania, 
under  the  act  of  1799,  it  was  determined  that  trusts  in  land 
might  be  created  by  parol*  The  statute  was  amended,  how- 
ever, in  1851.^  In  Kentucky,  the  seventh  section  was  omit- 
ted ;  but  the  courts  treat  all  parol  agreements  that  would 
create  a  trust  as  agreements  for  the  sale  or  purchase  of  some 
interest  in  land,  and  therefore  void  as  within  the  fourth  section 
of  the  statute.^  In  nearly  all  the  other  States  the  statute  of 
frauds  was  substantially  re-enacted  at  an  early  day  in  its  full 
extent,  and  in  those  States  it  has  not  since  been  an  open 
question  whether  parol  trusts  could  be  created." 

§  76.  It  must  also  be  observed  that  if  a  trust  is  declared  in 
writing,  courts  never  permit  parol  proof  of  a  trust  to  contra- 
dict an  intention  expressed  upon  the  face  of  the  instrument 
itself,^  for  that  would  be  to  allow  parol  evidence  to  vary, 

1  Fay  V.  Fay,  2  Hayw.  131 ;  Shelton  v.  Shelton,  5  Jones,  Eq.  292;  Riggs 
V.  Swann,6  Jones,  Eq.  118;  McLaurin  v.  Fairly,  6  Jones,  Eq.  375;  Wright 
V.  Cain,  93  N.  C.  301 ;  Link  v.  Link,  90  N.  C.  235. 

2  Thompson  v.  Thompson,  1  Yerg.  100;  McLanahan  v.  McLanaban, 
6  Humph.  99;  Haywood  v.  Ensley,  8  Humph.  460;  Wilburn  v.  Spofford, 
4  Sneed,  705. 

3  Bank  of  United  States  v.  Carrington,  7  Leigh,  576;  Walraven  v.  Lock, 
2  P.  &  H.  549;  Lockwood  v.  Canfield,  20  Cal.  126;  Hidden  v.  Jordan,  21 
Cal.  92. 

4  German  v.  Gabbald,  3  Binn.  302;  Wallace  v.  Duffield,  2  S.  &  R.  521; 
Slaymaker  v.  St.  Johns,  5  Watts,  27;  Murphy  v.  Hubert,  7  Barr,  420; 
Tritt  V.  Crotzer,  13  Pa.  St.  452;  Wetherell  v.  Hamilton,  15  Pa.  St.  195; 
Moneys.  Herrick,  18  Pa.  St.  128;  Blyholder  v.  Gilson,  18  Pa.  St.  134. 
See  Freeman  v.  Freeman,  2  Pars.  Eq.  81. 

5  Shoofstall  V.  Adams,  2  Grant's  Gas.  209;  Barnett  v.  Dougherty,  32 
Pa.  St.  371. 

6  Parker  v.  Bodley,  4  Bibb,  102;  Chikls  v.  Woodson,  2  Bibb,  72. 

'  See  Browne's  Statute  of  Frauds,  §§  79-82;  Anding  i'.  Davis,  38  Miss. 
574;  Harper  v.  Harper,  5  Bush,  177;  Wolf  v.  Corley,  30  ]\Id.  356;  Eaton 
V.  Eaton,  35  N.  J.  (L.)  290;  Knox  v.  McFarren,  4  Col.  580;  Thomas  r. 
Merry,  113  Ind.  83;  McGinness  v.  Barton,  71  Iowa,  644;  Hain  v.  Robin- 
son, 72  Iowa,  735;  Ingham  v.  Burnell,  31  Kans.  333;  Lawrence  v.  Law- 
rence, 14  Or.  77. 

8  Lewis  V.  Lewis,  2  Ch.  R.  77;  Finch's  Cas.  4  Inst.  86;  Childers  v. 
Childers,  3  K.  &  J.  310;  1  De  G.  &  J.  482;  Fordyce  v.  Willis,  3  Bro.  Ch. 
68 


CHAP.  III.]  AT   COMMON   LAW.  [§  76. 

contradict,  or  annul  a  written  instrument ;  nor  is  it  necessary, 
in  order  to  exclude  evidence,  that  the  beneficial  estate  should 
be  expressly  conferred  upon  the  grantee  of  the  legal  estate, 
for  a  trust  cannot  be  raised  by  parol  if,  from  the  nature  of  the 
instrument  or  from  any  circumstance  of  evidence  appearing 
upon  the  face  of  it,  an  intention  can  be  clearly  implied  of 
making  the  holder  of  the  legal  estate  also  the  holder  of  the 
beneficial  estate.^  Thus  a  trust  cannot  be  proved  by  parol 
where  a  valuable  consideration  was  paid  from  the  grantor's 
own  money .^  Oral  proof  cannot  be  heard,  to  engraft  an  ex- 
press trust  on  a  conveyance  absolute  in  its  terms.^  Nor  will 
subsequent  declarations  of  the  grantor,  oral  or  written,  avail 
for  this  purpose.^  To  establish  by  parol  that  the  grantee  in 
an  absolute  deed  is  a  trustee,  it  must  be  shown  that  the  whole 
or  a  part  of  the  purchase-money  was  not  his,  or  that  fraud, 
artifice,  solicitation,  or  persuasion  entered  into  the  induce- 
ments for  executing  the  deed.  A  mere  breach  of  a  parol 
agreement  is  not  enough  to  create  a  trust.^  A  parol  trust  is 
not,  however,  an  absolute  nullity  in  any  case,  but  rests  in  the 
election  of  the  trustee  in  those  cases  where  the  cestui  cannot 
enforce  it.  The  courts  will  protect  the  trustee  in  the  execu- 
tion of  the  trust  if  he  chooses  so  to  do,  and  as  far  as  possible 
will  protect  the  beneficiaries  in  the  enjoyment  of  the  fruits  of 

587;  Leman  v.  Whitley,  4  Russ.  423 ;  Lloyd  v.  Tnglis,  I  Des.  333;  Sims  v. 
Smith,  11  Ga.  198;  Harris  v.  Barnett,  3  Grat.  339;  Dickenson  v.  Dicken- 
son, 2  Murph.  279;  Steere  v.  Steers,  5  Johns.  Ch.  1;  Gainus  v.  Cannon, 
42  Ark.  503. 

1  Ibid. ;  Lewin,  42,  .5th  ed.;  Gilbert  on  Uses,  56,  57;  Pilkington  v.  Bai- 
ley, 7  Bro.  P.  C.  526;  Dean  v.  Dean,  6  Conn.  285;  Hutchinson  v.  Tindall, 
2  Green,  Ch.  257 ;  Starr  v.  Starr,  1  Ohio,  321 ;  Movan  v.  Hays,  1  Johns. 
Ch.  343;  Philbrooke  v.  Delano,  29  Me.  410;  Clagett  v.  Hall,  9  Gill  &  J. 
80.  See  notes  to  Woollam  v.  Hearn,  2  Lead.  Ca.  Eq.  404;  Irnham  v. 
Child,  1  Bro.  Ch.  92;  Bartlett  v.  Pickersgill,  1  Ed.  515. 

2  Ibid. 

»  Kelly  V.  Karsner,  72  Ala.  110;  Lawson  v.  Lawson,  117  111.  98;  Phil- 
lips V.  South  Park  Commissioners,  119  111.  626;  Green  v.  Gates,  73  Mo. 
122;  Hansen  v.  Berthelson,  19  Neb.  433;  Cain  v.  Cox,  23  W.  Va.  594; 
Pavey  v.  American  Ins.  Co.,  56  Wis.  221. 

*  Phillips  V.  South  Park  Commissioners,  119  111.  626. 

6  Hollinshead's  App.,  103  Pa.  St.  158. 

59 


§  77.]  EXPRESS    TRUSTS,    ETC.  [CHAP.  III. 

its  execution.^  But  where  A.  agreed  to  purchase  land  for 
B.,  and  purchased  it  and  took  an  absolute  title  to  himself,  it 
was  held  that  B.,  not  being  privy  to  the  deed,  was  not  bound 
by  it,  and  might  prove  a  trust  by  parol.^  And  where  one 
holds  lands  in  secret  trust  to  defraud  creditors,  a  subsequent 
parol  agreement  by  which  the  land  is  to  be  held  in  trust /or 
the  creditors,  &c.,  will  be  good.^ 

§  77.  If  a  trust  is  once  effectually  created  by  parol,  it  can- 
not subsequently.be  revoked  or  altered  by  the  party  creating 
it,  for  it  is  governed  by  the  same  rules  that  govern  trusts 
created  by  writing.*  And  if  a  parol  trust  has  been  executed 
it  cannot  be  revoked,  and  if  money  has  been  paid  upon  it,  it 
cannot  be  recovered  back.^  The  declarations  of  the  grantor, 
to  create  a  trust,  must  be  prior  to,  or  contemporaneous  with, 
the  conveyance,  for  it  would  be  against  reason  and  the  rules 
of  evidence  to  allow  a  man  who  has  parted  with  all  interest 
in  an  estate  to  charge  it  with  any  trust  or  incumbrance  after 
such  conveyance  ;^  nor  can  the  cestui  que  trust  give  his  own 
declarations  in  evidence  to  create  a  trust  in  his  favor ;  but 
where  parties  may  be  witnesses,  he  can  testify  to  the  facts 
like  any  other  witness ;  and  if  the  circumstances  are  such  as 
to  raise  a  resulting  or  implied  trust  upon  the  conveyance,  the 

1  Karr  v.  Washburn,  56  Wis.  303. 

2  Strong  V.  Glasgow,  2  Murph.  289 ;  Squire's  App.,  70  Pa.  St.  266. 
2  Langsdale  v.  Woollen,  99  Incl.  575. 

4  Kilpin  V.  Kilpin,  1  M.  &  K.  531;  Adlington  v.  Cann,  3  Atk.  151; 
Freeman  v.  Freeman,  2  Pars.  Eq.  81;  Crabb  v.  Crabb,  1  M.  &  K.  511; 
Greenfield's  Est.,  14  Pa.  St.  489;  Kirkpatrick  v.  McDonald,  11  Pa.  St. 
387;  Walgrave  v.  Tibbs,  2  K.  &  J.  313;  Lee  v.  Ferris,  2  K.  &  J.  357; 
Russell  V.  Jackson,  10  Hare,  204;  Lomax  v.  Ripley,  3  Sm.  &  Gif.  48;  In 
re  Dunbar,  2  Jon.  &  La.  120;  Brown  v.  Brown,  12  Md.  87;  Tritt  v.  Crot- 
zer,  13  Pa.  St.  451. 

6  Eaton  V.  Eaton,  35  N.  J.  (L.)  290. 

«  Adlington  v.  Cann,  3  Atk.  145;  Walgi-ave  v.  Tibbs,  2  K.  &  J.  313; 
Lee  V.  Ferris,  2  K.  &  J.  357;  Russell  r.  Jackson,  10  Hare,  204;  Lomax  v. 
Ripley,  3  Sm.  &  Gif.  48;  Brown  v.  Brown,  12  Md.  87;  Tritt  v.  Crotzer, 
13  Pa.  St.  451;  In  re  Dunbar,  2  Jon.  &  La.  120;  Ivory  v.  Burns,  56  Pa. 
St.  303;  Bennett  v.  Fulmer,  49  Pa  St.  155;  Knox  v.  IMcFarren,  4  Col.  586. 
See  Chapman  v.  Wilbur,  3  Oreg.  326,  for  a  pai'ticular  case. 

60 


CHAP.  III.]  STATUTE    OF    FRAUDS,  [§  78. 

person  entitled  to  such  beneficial  interest  has  the  right  at 
any  time  to  declare  the  trust.^  The  declarations  of  a  trustee 
can  be  given  in  evidence  to  show  how  he  held  the  estate  ;2 
that  is,  in  those  States  where  the  trust  may  be  proved  by 
parol.  But  these  declarations  must  be  clear  and  explicit, 
and  point  out  with  certainty  both  the  subject-matter  of  the 
trust  and  the  person  who  is  to  take  the  beneficial  interest. 
Casual  and  indefinite  expressions  of  mere  inchoate  intentions, 
not  carried  into  effect,  are  insufficient  to  raise  a  trust.^  If  a 
pension  from  the  government  is  granted  to  A.,  a  trust  cannot 
be  raised  by  parol  in  favor  of  B.,  for  a  pension  is  conferred  as 
an  honor,  and  is  founded  upon  the  personal  services  and 
merits  of  the  annuitant.* 

§  78.  The  seventh  section  of  the  statute  of  frauds  enacted 
that  all  declarations  or  creations  of  trusts  or  confidences  in 
any  lands,  tenements,  or  hereditaments,  "  shall  be  manifested 
and  proved  by  some  writing  signed  by  the  party  who  is  by  law 
to  declare  such  trust,  or  by  his  last  will  in  writing,"  or  else 
they  shall  be  utterly  void  and  of  none  effect. 

Sec.  8.  Provided  always  that  where  any  conveyance  shall 
be  made  of  any  lands  or  tenements  by  which  a  trust  or  confi- 
dence shall  or  may  arise  or  result  by  the  implication  or  con- 
struction of  law,  or  be  transferred  or  extinguished  by  an  act 
or  operation  of  law,  then  and  in  every  such  case  such  trust  or 
confidence  shall  be  of  like  force  as  the  same  would  have  been 
if  this  statute  had  not  been  made,  anything  hereinbefore  to  the 
contrary  notwithstanding. 

1  Bellasis  v.  Compton,  2  Vera.  294;  Lee  v.  Huntoon,  1  Hoff.  Ch.  447; 
Harris  v.  Barnett,  3  Grat.  339 ;  Reid  v.  Reid,  12  Rich.  Eq.  213. 

2  Ambrose  v.  Ambrose,  1  P.  Wms.  322 ;  Gardner  v.  Rowe,  2  S.  &  S. 
346;  5  Russ.  258;  Wilson  v.  Dent,  3  Sim.  385;  Wiilard  v.  Willard,  56 
Pa.  St.  119;  Dollinger's  App,,  71  Pa.  St.  425. 

8  Kilpin  V.  Kilpin,  1  M.  &  K.  520;  Benbow  v.  Townsend,  1  M.  &  K. 
506;  Bayley  v.  Boulcott,  4  Russ.  345;  Harrison  v.  McMennomy,  2  Edw. 
Ch.  251;  Slocumb  v.  Marshall,  2  Wash.  C.  C.  398;  Sidle  v.  Walters,  5 
Watts,  389;  Mercer  v.  Stock,  1  S.  &  M.  Ch  479;  Hurst  v.  McNeil,  1 
Wash.  C.  C.  70;  Smith  v.  Patton,  12  W.  Va.  541;  Childs  v.  Wesleyan 
Cemetery  Ass.,  4  Mo.  App.  74. 

^  Fordyce  v.  WilUs,  3  Bro.  Ch.  587. 

61 


^  79.]  EXPRESS   TRUSTS,   ETC.  [CHAP.  III. 

Sec.  9.  All  grants  or  assignments  of  any  trust  or  confi- 
dence shall  likewise  be  in  writing,  signed  by  the  party  grant- 
ing or  assigning  the  same,  or  by  such  last  will  or  devise,  or 
else  shall  likewise  be  utterly  void  and  of  none  efifect.i 

§  79.  Wherever  this  statute  or  the  substance  of  the  statute 
is  in  force,  express  trusts  in  realty  cannot  be  j^roved  by  parol.^ 
In  suits  to  establish  or  enforce  trusts  in  real  estate  parol  proof 
is  insufficient.^  They  must  be  manifested  or  j^^'oved  by  some 
writing,  signed  by  the  party  to  be  charged  with  the  trust. 
They  need  not  he  created  and  declared  in  writing,  but  only 
manifested  or  proved  by  writing;  for  if  there  be  written 
evidence  of  the  existence  of  the  trust,  the  danger  of  parol 

1  29  Car.  II.  c.  3,  §§  7,  8,  9. 

In  Arkansas,  Florida,  Georgia,  Illinois,  Maryland,  Missouri,  Xew  Jer- 
sey, and  South  Carolina,  the  statute  of  Charles  is  re-enacted  almost  in 
words,  and  the  trust  or  confidence  must  be  "  manifested  or  proved  by 
some  writing  signed  by  the  party." 

In  Alabama,  California.  Maine,  Massachusetts,  Michigan,  Mississippi, 
New  Hampshire,  Rhode  Island,  Vermont,  and  Wisconsin,  "the  trust 
must  be  created  or  declared  by  instrument  in  writing  signed  by  the  party 
creating  or  declaring  the  same." 

In  New  York,  the  seventh  section  was  re-enacted  ;  but  in  the  revised 
statutes  it  was  enacted  "  that  the  trust  should  be  created  or  declared  by 
deed  or  conveyance  in  writing,"  signed,  &c. ;  but  in  1860  it  was  enacted 
"  that  any  writing  signed  by  the  parties  "  should  be  sufficient. 

In  Pennsylvania,  the  seventh  section  was  not  enacted,  and  trusts  could 
be  created  and  proved  by  parol;  but  in  1856  the  seventh  section  was  sub- 
stantially enacted. 

In  Texas,  North  Carolina,  Tennessee,  Virginia,  Connecticut,  Delaware, 
Kentucky,  Indiana,  and  Ohio,  the  seventh  section  does  not  seem  to  be  re- 
enacted.     See  ante,  §  75. 

In  Iowa,  declarations  and  creations  of  trust  or  powers  in  relation  to  real 
estate  must  be  executed  in  the  same  manner  as  deeds  of  conveyance. 

The  ninth  section  seems  to  be  in  force  in  all  the  States. 

2  Gerry  v.  Stimson,  60  Me.  186;  Stevenson  v.  Crapnell,  114  111.  19. 

8  Todd  V.  Munson,  53  Conn.  579.  It  is  to  be  remembered,  however, 
that  in  suits  to  enforce  contracts,  con-ect  mistakes,  and  punish  or  prevent 
frauds,  it  may  be  necessary  to  show  incidentally  an  express  trust  by  parol. 
Id.  592.  And  so  a  parol  trust  may  be  proved  in  order  to  show  that  the 
apparent  owner  has  no  interest  in  the  land  which  equity  will  subject  to 
the  lien  of  a  judgment.     Hays  v.  Reger,  102  Ind.  524. 

62 


CHAP.  III.]  STATUTE    OF    FRAUDS.  [§  81. 

evidence,  against  which  the  statute  was  directed,  is  effectually 
removed.^  It  may  be  questioned  whether  it  was  not  the 
intention  of  the  statute  that  the  creation  or  declaration  itself 
should  be  in  writing ;  for  the  ninth  section  enacts  that  "  all 
grants  and  assignments  of  any  trust  or  confidence  shall  like- 
wise be  in  writing,  signed  by  the  party  granting  or  assigning 
the  same,  or  by  his  last  will  or  devise ; "  but  whatever  may 
have  been  the  actual  intention  of  the  legislature,  the  con- 
struction put  upon  the  clause  is  now  firmly  established.^  A 
mere  admission  in  writing  that  parol  promises  to  hold  the 
land  in  trust  were  made  at  the  time  of  the  conveyance  is  not 
enough  to  give  life  to  the  trust.^  It  is  well  established  that 
the  interest  of  the  cestui  que  trust  in  land  cannot  be  conveyed 
by  parol.* 

§  80,  In  many  of  the  United  States  the  words  of  the 
seventh  section  are  replaced  by  words  to  the  effect  that  "  the 
trust  must  be  created  or  declared  by  an  instrument  in  writing 
signed  by  the  party ; "  ^  and  the  question  has  arisen  whether 
this  is  a  change  of  the  law  as  established  under  the  words  of 
the  original  statute  of  frauds. 

§  81.  The  question  has  not  been  directly  adjudged  in  a  re- 
ported case  raising  the  exact  point ;  but  it  has  arisen  inciden- 
tally before  the  courts,  and  the  intimations  are  that  these 
words  do  not  change  the  law,  and  that "  created  and  declared  " 

1  Forster  v.  Hale,  3  Ves.  Jr.  707;  5  Ves.  315;  Smith  v.  Mathews,  3 
De  G.,  F.  &  J.  139;  Randall  v.  Morgan,  12  Ves.  74;  Unitarian  Society  v. 
Woodbury,  14  Me.  281 ;  Steere  v.  Steere,  5  Johns.  Ch.  1;  Movan  v.  Hays, 

1  Johns.  Ch.  339;  McCubbin  v.  Cromwell,  7  Gill  &  J.  157;  Barrel!  v.  Joy, 
16  Mass.  221;  Finney  v.  Fellows,  15  Vt.  525;  Rutledge  v.  Smith,  1  Mc- 
Cord,  Ch.  119;  Johnson  v.  Ronald,  4  Munf.  77;  Hutchinson  v.  Tindall, 

2  Green,  Ch.  357;  Lane  v.  Ewing,  31  Mo.  75;  Safford  v.  Rantoul,  12  Pick. 
233;  Gibson  v.  Foote,  40  Miss.  788;  Reid  v.  Reid,  12  Rich.  Eq.  213. 
Numerous  other  cases  might  be  cited ;  but  the  rule  is  so  well  established 
that  it  is  not  necessary. 

2  Lewin  on  Trusts,  45;  Black  v.  Black,  4  Pick.  23G. 
8  Scott  V.  Harris,  113  111.  447. 

*  Richards  v.  Richards,  9  Gray,  313;  Smith  v.  Burnham,  3  Sumn.  435 
6  See  ante,  §  78,  note.     Bibb  v.  Hunter,  79  Ala.  351. 

63 


§  81.]  EXPRESS   TRUSTS,    ETC.  [CHAP.  III. 

are  equivalent  to  "  manifested  and  proved."  In  practice,  tlie 
great  majority  of  trusts  are  not  created  by  a  deed  or  convey- 
ance of  land,  but  they  arise  from  the  transactions  and  agree- 
ments of  parties ;  and  if  these  transactions  or  agreements  are 
evidenced  in  writing,  the  trust  is  sufficiently  created,  declared, 
manifested,  or  proved.  Thus  Mr.  Justice  Bennett,  in  Vermont, 
where  the  words  are  "  created  and  declared  by  instrument," 
said,  that  "  our  statute  is  the  same  in  effect  as  the  English 
statute."  ^  And  Mr.  Justice  Story  said,  that  "  in  his  opinion, 
there  was  no  substantial  difference  between  the  Massachusetts 
statute  of  frauds"  (which  is  in  substance  the  same  as  the 
statute  of  Vermont)  "  and  the  statute  of  29  Car.  II.  c.  3 ;  and 
such  is  the  conclusion  to  which  I  have  arrived  upon  an  ex- 
amination of  these  statutes."  ^  And  in  Wisconsin,  where  the 
statute  is  the  same  as  the  statutes  of  Massachusetts  and  Ver- 
mont, it  was  held  that  an  express  trust  need  not  be  declared 
in  express  terms ;  that  it  is  sufficiently  declared  or  created  if 
shown  by  any  proper  written  evidence,  such  as  an  answer 
to  a  bill  in  equity,  note,  letter,  or  memorandum,  disclosing 
facts  which  create  a  fiduciary  relation.^  In  New  York,  the 
words  of  the  statute  were  that  "  the  trust  should  be  created 
or  declared  by  deed  or  conveyance  in  writing."  In  relation 
to  this  Mr.  Justice  Strong  said,  that  "the  definition  of  the 
term  conveyance  given  in  the  Revised  Statutes  *  comprehends 
a  declaration  of  trust,  although  not  under  seal,  as  it  is  an 
instrument  by  which  the  title  to  such  estate  may  be  affected 
in  law  or  equity."^  In  another  case,  Chief-Justice  Ruggles 
said :  "  The  statute  prescribes  no  particular  form  by  which 
the  trust  is  to  be  created  or  declared.  Under  our  former 
statute,  in  relation  to  this  subject,  it  was  only  necessary 
that  the  trust  should  be  manifested  in  writing,  and  therefore 
letters  from  the  trustee  disclosing  the  trust  were  sufficient ; 
such  is  the  law  of  England.^     Our  present  statute  requires 

1  Pinnock  v.  Clough,  17  Vt.  508. 

2  Jenkins  v.  Eldredge,  3  Story,  294. 

3  Pratt  V.  Ayer,  2  Chand.  265.  *  1  R.  S.  762,  §  38. 
6  Corse  V.  Leggett,  25  Barb.  394. 

«  Stat.  29  Car.  II.  c.  3,  §  7;  Forster  v.  Hale,  3  Ves.  Jr.  696. 
64 


CHAP.  III.]  STATUTE    OF    FRAUDS.  [§  82. 

that  the  trust  should  be  created  or  declared  by  deed  or  convey- 
ance in  writing,  subscribed  by  the  party  creating  or  declaring 
the  trust ;  ^  but  it  need  not  be  done  in  the  form  of  a  grant.  A 
declaration  of  trust  is  not  a  grant.  It  may  be  contained  in 
the  reciting  part  of  a  conveyance.  Such  a  recital  in  an  in- 
denture is  a  solemn  declaration  of  the  existence  of  the  facts 
recited ;  and  if  the  trustee  and  the  cestui  que  trust  are  parties 
to  the  conveyance,  the  trust  is  as  well  and  effectually  declared 
in  that  form  as  in  any  other."  ^  Upon  sound  reason  then,  and 
upon  the  decided  cases,  it  would  seem  that  the  peculiar  form 
of  words  in  some  of  the  statutes  of  the  American  States 
has  not  altered  the  general  rule,  as  established  under  the 
English  statute ;  and  that  the  same  evidence  would  be  gen- 
erally received  in  the  United  States  to  establish  a  trust,  as 
in  England.-'^ 

§  82.  There  is  no  particular  formality  required  or  ne- 
cessary in  the  creation  of  a  trust.*  All  that  is  required 
is  written  evidence  supplying  every  essential  detail  of  the 
trust.^  In  New  York,  a  trust  is  valid  if  the  intention  is 
clear  to  create  a  trust  to  accomplish  one  of  the  purposes 
named  in  the  statute,^  whether  it  is  stated  in  the  precise 
words  of  the  statute  or  not.''     But  trusts  not  authorized  by 

1  The  act  of  1860  now  makes  the  statute  of  New  York  confoi'm  in 
words  to  the  statutes  of  the  other  States.     Cook  v.  Barr,  44  N.  Y.  158. 

•2  Wright  V.  Douglass,  3  Seld.  569;  Cook  v.  Barr,  44  N.  Y.  158. 

3  Sheet's  Estate,  52  Pa.  St.  527;  Blodgett  v.  Hildreth,  103  Mass.  486. 
Mr.  Browne,  in  his  able  treatise  upon  the  statute  of  frauds,  cites  the  case 
of  Jaques  v.  Hall,  where  the  Supreme  Judicial  Court  of  Massachusetts, 
notwithstanding  the  words  of  the  Massachusetts  statute,  considered  an 
entry  in  a  private  memorandum  book  of  the  trustee,  setting  forth  clearly 
a  previous  transaction  by  which  he  had  become  trustee,  as  a  satisfactory 
declaration  of  trust.  There  was  other  evidence;  and,  as  the  case  is  not 
put  upon  this  ground,  in  the  printed  report,  3  Gray,  194,  the  court  probably 
chose  to  rest  the  decision  upon  other  grounds.  In  Titcomb  v.  Morrill,  10 
Allen,  15,  Mr.  Justice  Chapman  said  it  was  not  necessary  to  decide  the 
question.     See  Browne  on  Statute  of  Frauds,  §  104,  1st  ed. 

*  Tyler  v.  Tyler,  25  Brad.  (Ill  )  330,  quoting  the  text.  In  a  will  it  is 
sufficient  if  the  intent  is  clear.     Quinn  v.  Shields,  62  Iowa,  129. 

5  Dyer's  App.,  107  Pa.  St.  446. 

«  1  R.  S.  728,  §  55.  ■'  Morse  v.  Morse,  85  N.  Y.  53. 

VOL.  I.  — 5  65 


§  82.]  EXPRESS   TRUSTS,    ETC.  [CHAP.  III. 

the  statute  are  void.^  A  sealed  paper,  delivered  with  the 
deed  and  mentioned  in  the  deed  as  part  of  it,  is  a  part  of  it, 
even  though  the  instructions  were  that  the  sealed  document 
should  not  be  opened  until  after  the  death  of  the  grantor.'-^ 
Any  agreement  or  contract  in  writing,  made  by  a  person  hav- 
ing the  power  of  disposal  over  property,  whereby  such  person 
agrees  or  directs  that  a  particular  parcel  of  property  or  a 
certain  fund  shall  be  held  or  dealt  with  in  a  particular  manner 
for  the  benefit  of  another,  in  a  court  of  equity  raises  a  trust 
in  favor  of  such  other  person  against  the  person  making  such 
agreement,  or  any  otlier  person  claiming  under  him  volun- 
tarily or  with  notice  ;  ^  and  the  statute  of  frauds  will  be 
satisfied  if  the  trust  can  be  manifested  or  proved  by  any 
subsequent  acknowledgment  by  the  trustee,  as  by  an  express 
declaration,*  or  any   memorandum  to  that   effect,^  or  by  a 

1  Syracuse  Savings  Bank  v.  Porter,  36  Hun,  168;  FoUett  v.  Badeau,  26 
Hun,  253. 

2  Van  Cott  V.  Prentice,  35  Hun,  322. 

3  See  §  122  and  cases  cited;  2  Spence,  Eq.  860;  Legard  v.  Hodges,  1 
Ves.  Jr.  478;  Baylies  v.  Peyton,  5  Allen,  488;  Taylor  v.  Pownal,  10  Leigh, 
183;  Currie  v.  White,  45  X.  Y.  822;  Pingre  v.  Coffin,  12  Gray,  288;  Reed 
V.  Lukens,  44  Pa.  St.  200;  Conway  v.  Kensworthy,  21  Ark.  9  ;  Cressman's 
App.,  42  Pa.  St.  147;  Rahun  v.  Rahun,  15  La.  An.  471;  Rees  v.  Living- 
ston, 41  Pa.  St.  113;  Paul  v.  Fulton,  32  Miss.  110;  Seymour  v.  Freer,  8 
Wallace,  202;  Price  v.  Reeves,  38  Cal.  457;  Waddingham  v.  Loker,  44 
Mo.  132;  Giddings  v.  Palmer,  107  Mass.  270;  Homer  v.  Homer,  107  i\Iass. 
270;  Price  v.  Minot,  107  Mass.  61.  But  see  Kelley  i'.  Babcock,  49  N.  Y. 
32;  Ogden  v.  Larrabee,  57  111.389;  Lake  v.  Freer,  11  Brad.  (111.)  576; 
Freer  y.  Lake,  115  111.662;  Jones  v.  Lloyd,  117  111.  597;  Titchenell  r. 
Jackson,  26  W.  Va.  460;  Whitcomb  r.  Cardell,  45  Vt.  24;  Pinson  v.  Mc- 
Gehee,  44  Miss.  229;  Conway  v.  Cutting,  51  N.  H.  408  ;  Jones  v.  Wilson, 
60  Ala.  332.  An  agreement  to  support  the  grantor  as  a  substantial  part 
of  the  consideration  of  the  conveyance  creates  a  secret  trust  void  against 
existing  creditors  not  otherwise  having  a  sufficient  remedy.  Funk  v. 
Lawson,  12  Brad.  (111.)  229. 

*  Lewin  on  Trusts,  62;  Ambrose  v.  Ambrose,  1  P.  Wms.  321;  Crop  v. 
Norton,  10  Mod.  233;  Willard  v.  Willard,  56  Pa  St.  119;  Knox  i'.  Mc- 
Farren,  4  Col.  586;  Phillips  v.  South  Park  Commissioners,  119  111.  640, 
quoting  the  text. 

5  Bellamy  v.  Burrow,  Cas.  tem.  Talb.  97;  Fisher  v.  Fields,  10  Johns. 
495;  Urann  v.  Coates,  109  Mass.  581;  Brooke's  App.,  109;  Pa.  St. 
188. 

66 


CHAP.  III.]  STATUTE    OF    FRAUDS.  [§  82. 

letter  under  his  hand/  or  by  his  answer  in  chancery ,2  or  by 
his  affidavit,^  or  by  a  recital  in  a  bond*  or  deed,^  or  by  a 
pamphlet  ^  written  by  the  trustees,  or  by  an  entry  in  a  bank- 
deposit  book ; ''  in  short,  by  any  writing  in  which  the  fiduciary 
relation  between  the  parties  and  its  terms  can  be  clearly 
read.^  And  if  there  is  any  competent  written  evidence  that 
the  person  holding  the  legal  title  is  only  a  trustee,  that  will 
open  the  door  for  the  admission  of  parol  evidence  to  explain 
the  position  of  the  parties,^  as  where  there  are  entries  in  the 

1  Johnson  v.  DeUney,  35  Tex.  42;  Buckner  v.  Kingsbury,  35  Tex.  42; 
Phelps  ;;.  Seeley,  22  Grat.  573;  INIontague  v.  Hayes,  10  Gray,  609;  Kings- 
bury V.  Burnside,  58  111.  300  ;  Forster  v.  Hale,  3  Ves.  Jr.  696;  5  Ves.  308 
Morton  v.  Tewart,  2  Yo.  &  Col.  Ch.  67;  Steere  r.  Steere,  5  Johns.  Ch.  1 
Bentley  v.  Mackay,  15  Beav.  12;  Childers  v.  Childers,  1  De  G.  &  J.  482 
Smith  V.  Wilkinson,  3  Ves.  705;  O'Hara  v.  O'Neill,  7  Bro.  P.  C.  227 
Gardner  v.  Rowe,  2  S.  &  S.  346;  Crook  v.  Brooking,  2  Vern.  106.     But 
this  case  was  before  the  statute.     It  is  not  necessary  that  the  trust  and 
its  terms  should  be  found  in  one  letter;  it  is  sufficient  if  they  appear  from 
any  number  of  letters  or  writings.     McCandless  v.  Warner,  20  W.  Va. 
754;  Loring  v.  Palmer,  118  U.  S.  321,  construing  Michigan  law. 

2  Hampton  v.  Spencer,  2  Vern.  288;  i\ab  v.  Nab,  10  Mod.  404;  1  Eq. 
Ca.  Ab.  464;  Gil.  Eq  146;  Cottington  v.  Fletcher,  2  Atk.  155;  Ryall  v. 
Ryall,  1  Atk.  59;  Wilson  v.  Dent,  3  Sim.  385;  Butler  v.  Portarlington, 
1  Conn.  &  Laws.  1;  1  Dr.  &  W.  20;  McCubbin  v.  Cromwell,  7  Gill  &  J. 
175;  Jones  v.  Slubey,  5  liar.  &  J.  372. 

3  Barkworth  v.  Young,  4  Drew.  1;  Pinney  v.  Fellows,  15  Vt.  .525. 

4  Mooi-croft  V.  Dowding,  2  P.  Wms.  314;  Wright  v.  Douglass,  3  Seld. 
564;  Gomez  v.  Traders'  Bank,  4  Sandf.  102. 

s  Deg  V.  Deg,  2  P.  Wms.  412;  Selden's  App.,  31  Conn.  548;  Wright 
V.  Douglass,  3  Seld.  564,  reversing  s.  c.  10  Barb.  97. 

6  Barren  v.  Joy,  16  Mass.  221. 

7  Barker  v.  Frye,  75  Me.  29. 

8  Baylies  v.  Payson,  5  Allen,  473;  Plymouth  v.  Hickman,  2  Vern.  167; 
Blake  v.  Blake,  2  Bro.  P.  C.  250;  Dale  v.  Hamilton,  2  Phill.  266;  Orleans 
V.  Chatham,  2  Pick.  29;  Hardin  v.  Baird,  6  Litt.  346;  Graham  v.  Lam- 
bert, 5  Humph.  .595;  Gome  v.  Tradesman's  Bank,  4  Sand.  106;  Bragg  v. 
Paulk,  42  Me.  502;  McCubbin  v.  Cromwell,  7  Gill  &  J.  157;  Unitarian 
Society  v.  Woodbury,  14  Me.  281;  Podmore  v.  Gunning,  7  Sim.  655; 
Fisher  v.  Fields,  10  Johns.  Ch.  505;  Murray  v.  Glass,  23  L.  J.  Ch.  126; 
Paterson  v.  Murphy,  17  Jur.  298;  Raybold  v.  Raybold,  20  Pa.  St.  308; 
Barron  v.  Barron,  24  Vt.  375;  Steere  v.  Steere,  5  Johns.  Ch.  1;  Cuyler  v. 
Bradt,  Caine's  Cas.  326;  Packard  v.  Putnam,  57  N.  H.  43. 

9  Cripps  V.  Lee,  4  Bro.  Ch.  472;  Hollinshed  v.  Allen,  17  Pa.  St.  275; 

07 


§  82.]  EXPRESS   TRUSTS,   ETC.  [CHAP.  III. 

books  of  the  grantee  of  payments  made  by  bim  to  or  o;i  ac- 
count of  the  grantor,  which  payments  were  consistent  only 
with  the  fact  that  the  grantee  took  in  trust,  he  was  decreed 
to  be  a  trustee.!  Nor  is  it  necessary  that  the  letters,  memo- 
randa, or  recitals  should  be  addressed  to  the  cestui  que  trust, 
or  should  have  been  intended  when  made  to  be  evidence  of 
the  trust.2  A  deed  of  gift  to  the  husband,  as  "  an  advance- 
ment "  to  the  wife,  will  create  a  trust  for  the  wife.  It  is  not 
necessary  that  the  word  "  trust "  or  "  trustee  "  should  be 
used.^  The  trust  thus  proved,  however  late  the  proof,  will 
relate  back  to  its  creation ;  as  where  a  lease  was  granted  to 
A.,  who  afterwards  became  a  bankrupt,  and  then  executed 
a  declaration  of  trust  in  favor  of  B.,  the  jury  having  found 
upon  an  issue  out  of  chancery  that  A.'s  name  was  used  in 
good  faith  in  the  lease  as  the  trustee  of  B.,  it  was  held  that 
the  assignees  of  A.  took  nothing  in  the  property.*     But  it 

Pievost  V.  Gratz,  1  Pet.  C.  C.  36G;  Morton  v.  Tewart,  2  Yo.  &  Coll.  Ch. 
67-77;  Hutchins  v.  Lee,  1  Atk.  447;  Corse  v.  Leggett,  25  Barb.  389.  But 
see  HoTiier  v.  Homer,  107  Mass.  82. 

1  Ibid. 

2  Forster  r.  Hale,  5  Ves.  308;  Hutchinson  v.  Tindall,  2  Green  Ch.  357; 
Barrel!  v.  Joy,  16  Mass.  221;  Welford  v.  Beazeley,  3  Atk.  503;  Browne  on 
Statute  of  Frauds,  §  99  ;  Furman  v.  Fisher,  4  Cold.  626 ;  Urann  v.  Coates, 
109  Mass.  581.  In  Steere  v.  Steere,  5  Johns.  Ch.  1,  Mr.  Chancellor  Kent 
recognized  and  approved  the  general  proposition  that  trusts  could  be 
proved  by  letters  signed  by  the  party,  but  in  showing  that  the  letters  in 
that  particular  case  were  insufficient  to  prove  a  trust,  he  took  notice  of  the 
fact  that  they  were  not  addressed  to  the  cestui  que  trust,  and  seemed  to  in- 
timate that  it  was  necessary  that  letters  should  be  so  addressed  in  order 
to  manifest  the  trust.  If  the  eminent  chancellor  intended  to  lay  down 
such  a  rule,  it  would  seem  to  be  effectually  overthrown  by  the  well-consid- 
ered cases  cited  above. 

3  Cresswell's  Adm'r  v.  Jones,  68  Ala.  420. 

*  Gardner  v.  Rowe,  2  S.  &  S.  346;  5  Russ.  258;  Plymouth  v.  Hickman, 
2  Vern.  167;  Ambrose  v.  Ambrose,  1  P.  Wms.  322;  Wilson  r.  Dent,  3 
Sim.  385;  Smith  r.  Howell,  3  Stockt.  349  ;  Ownes  v.  Ownes,  23  N.  J.  Ch. 
60;  McGovern  v.  Knox,  21  Ohio  St.  547;  Malin  v.  Malin,  1  Wend.  625; 
Steere  v.  Steere,  5  Johns.  Ch.  1;  Jackson  v.  Moore,  6  Cow.  706;  Reid  v. 
Fitch,  11  Barb.  399;  Reggs  v.  Swann,  6  .Tones,  Eq.  115;  Noble  v.  Morris, 
24  Ind.  478;  Sime  v.  Howard,  4  Nev.  473;  Reid  v.  Reid,  12  Rich-  Eq. 
213;  McLaurie  v.  Partlow,  53  111.  340. 
68 


CHAP.  III.]  STATUTE    OP    FRAUDS.  [§  82. 

must  clearly  appear  that  the  parties  intended  a  trust  by  the 
transaction,  and  parol  evidence  is  competent  to  explain  re- 
ceipts and  other  papers  connected  with  the  case  which  may 
be  explained  by  parol  in  other  cases. ^  A  mere  declaration  of 
motive,  as  a  grant  to  A.  in  order  that  he  may  maintain  his 
children,  will  not  create  a  trust ;  ^  nor  will  a  mere  request  of 
an  owner  to  his  heirs  to  convej^  land  to  a  person  named  in 
the  letter  expressing  his  wish.^  In  case  of  a  deposit  in  l)ank 
in  trust  for  another  there  must  be  an  intent  to  pass  the  bene- 
ficial interest  during  the  life  of  the  donor,  and  not  merely 
a  testamentary  intent  that  the  person  named  as  cestui  shall 
have  the  money  at  the  decease  of  the  donor,  who  retains  com- 
plete control  of  the  fund  during  his  life.^  The  general  rule  is 
that  a  deposit  of  money  in  the  name  of  the  depositor,  in  trust 
for  another,  transfers  the  title  to  the  latter.^  Where  a  savings 
bank  depositor  "  in  trust "  kept  the  book,  but  before  his  death 
told  the  beneficiary  in  substance,  "  That  money  I  put  in  the 
savings  bank  for  you,  is  yours,"  a  finding  that  there  was  a 
perfected  gift  was  justified.*^  The  question  is,  Do  the  facts 
show  an  intent  to  create  a  present  trust  ?  And  the  facts  that 
the  grantor  drew  interest  on  the  deposit,  or  offered  to  loan  the 
money  after  the  deposit  was  made,  are  not  conclusive  against 
a  trust.'  But  where  A.  deposits  money  in  the  name  of  B., 
"  sub.  to  A.,"  and  A.  receives  the  dividends  and  keeps  the 
pass-book  and  draws  such  portions  of  the  principal  for  her 
own  use  as  she  chooses,  there  is  no  gift  to  nor  trust  for  B. 
If  there  is  any  trust,  it  is  B.  who  is  trustee  for  A.^ 

1  Smith  V.  Tome,  ,59  Pa.  St.  158;  Hays  v.  Quay,  59  Pa.  St.  263. 

2  Bryan  v.  Rowland,  98  111.  625.  »  Preston  v.  Casner,  104  III.  262. 
♦  Nutt  V.  Morse,  142  Mass.  1,  3 ;  Waynesburg  College's  App.,  Ill  Pa. 

St.  130;  Smith  v.  Speer,  34  N.  J.  Eq.  336. 

5  Scott  V.  Harbeck,  49  Hun,  292. 

«  Alger  V.  North  End  Savings  Bank,  146  Mass.  418.  See  Mabie  v. 
Bailey,  95  N.  Y.  206,  and  Boone  v.  Citizens  Bank,  84  N.  Y.  83.  At  the 
death  of  the  trustee  the  trust  goes  to  her  executor  or  administrator,  and 
in  the  absence  of  notice  from  the  beneficiary  to  the  contrary,  he  may  pay 
the  money  to  said  representative. 

T  Willis  V.  Smyth,  91  N.  Y.  297. 

«  Northrop  v.  Hale,  73  Me.  71.     See  Marcy  v.  Amazeen,  61  N.  H.  131, 

69 


§  83.]  EXPRESS   TRUSTS,   ETC.  [CHAP.  III. 

§  83.  The  same  principles  of  construction  apply  to  trusts 
proved  by  this  description  of  evidence  as  in  other  cases ;  and 
the  objects  and  nature  of  the  trust  must  always  appear  from 
such  writings  with  sufficient  certainty,  and  also  their  connec- 
tion with  the  subject-matter  of  the  trust.^  Indeed,  courts 
require  demonstration  on  the  latter  point ;  and  the  trust  will 
not  be  executed  if  the  precise  nature  of  it,  and  the  particu- 
lar persons  who  are  to  take  as  cestuis  que  trust,  and  the  pro- 
portions in  which  they  are  to  take,  cannot  be  ascertained.^ 
When  all  these  particulars  properly  appear  from  writings 
signed  by  the  party,  the  trust  will  be  executed ;  but  if  the 
terms  of  the  trust  are  collected  from  several  papers,  it  is  not 
necessary  that  all  of  them  should  be  signed,  provided  they 
are  so  referred  to  and  connected  with  tlie  paper  that  is 
signed  that  they  may  be  identified  and  read  as  genuine 
papers,  and  a  part  of  the  transaction.^  Nor  need  there  be 
an  actual  subscription  of  the  party's  name,  if  the  paper  is 
authenticated  b}'  the  party  as  his  writing  for  the  purpose  of 
declaring  the  trust  by  writing  his  initials.'*  The  party  whose 
signature  is  essential  is  the  party  who  by  law  is  enabled  to 
declare  the  trust;  and  it  has  been  decided,  that,  whether  the 
property  is  real  or  personal,  the  party  enabled  to  declare  the 
trust  is  the  owner  of  the  beneficial  interest,  who  has  there- 
retaining  control  and  giving  cestui  no  notice,  no  trust;  and  Bartlett  v. 
Remington,  59  N.  H.  3G4,  a  similar  case,  an  executory  trust  without  con-  - 
sideration,  is  not  enforceable;  and  Pope  v.  Burlington  Savings  Bank, 
57  N.  Y.  126,  where  the  cestui  had  no  knowledge  of  the  deposit,  and  the 
depositor  withdrew  part  of  the  fund. 

1  Forster  v.  Hale,  3  Ves.  Jr.  708;  Steere  v.  Steere,  5  Johns.  Ch.  1; 
Abeel  v.  Radcliff,  13  Johns.  297:  Rutledge  y.  Smith,  1  McC.  Ch.  119; 
Freeport  v.  Bartol,  3  Greenl.  340;  Arms  v.  Ashley,  4  Pick.  71;  Hill  on 
Trustees,  61. 

2  Ibid.;  Smith  v.  Mathews,  3  De  G.,  F.  &  J.  139;  Morton  v.  Tewart, 
2  Yo.  &  Col.  Ch.  80;  Lewin  on  Trusts,  46;  Leman  v.  Whitley,  4  Russ. 
423;  Whelan  v.  Whelan.  3  Cow.  537;  Jackson  v.  Moore,  3  Cow  706; 
Reid  V.  Fitch,  11  Barb.  399 ;  Jones  v.  Wilson,  6  Ala.  332 ;  Taylor  v.  Keep, 
2  Brad.  (111.)  368. 

3  Ibid. ;  Dejiton  v.  Davis,  18  Ves.  503  ;  Lewin  on  Trusts,  47;  Browne 
on  the  Statute  of  Frauds,  §§  105,  350-355. 

*  Smith  V.  Howell,  3  Stockt.  349. 
70 


CHAP.  III.]  ANSWERS    IN    CHANCERY.  [§  84. 

fore  the  absolute  control  over  the  property,  the  holder  of  the 
legal  estate  being  a  mere  instruineut  or  conduit  pipe  for 
him.i  But  if  there  is  an  absolute  conveyance  of  the  legal 
title  to  a  supposed  trustee,  and  there  is  no  declaration  of  a 
trust  prior  to  or  at  the  time  of  the  conveyance  by  the  grantor, 
and  the  cestui  que  trust  attempts  to  charge  the  grantee  with 
a  trust  in  respect  to  the  land,  he  must  produce  some  writing 
signed  by  the  grantee  of  the  legal  title  in  order  to  charge 
him  with  the  trust.^  It  is  only  when  there  is  no  dispute  con- 
cerning the  existence  of  a  trust,  or  when  the  trust  arises  by 
operation  of  law  as  a  resulting  or  implied  trust,  that  the  cestui 
que  trust  himself  can  declare  its  terms.^ 

§  84.  It  remains  to  consider  when  and  how  far  trusts  may 
be  declared  or  proved  by  the  answers  of  parties  in  chancery. 
It  has  been  decided  that  a  defendant  is  bound  to  answer  to 
a  bill  suggesting  a  parol  trust,  and  that  a  general  demurrer  ^ 
would  be  overruled  ;  but  perhaps  this  doctrine  is  confined  to 
parol  trusts  that  arise  from  fraud,  accident,  or  mistake ;  for 
in  the  case  of  express  trusts,  if  it  can  be  gathered  from  the 
bill  that  the  plaintiff  relies  upon  parol  evidence  alone,  with 
no  circumstances  to  take  it  out  of  the  statute,  it  has  been 
held  that  the  defendant  may  demur.^     But  the  general  rule 

1  Tierney  v.  Wood,  19  Beav.  330;  Donahoe  v.  Conrahy,  2  Jon.  &  La. 
688;  Lewin  on  Trusts,  47. 

2  Browne  on  Statute  of  Frauds,  §  106;  Adlington  i'.  Cann,  3  Atk.  145; 
Wallgrave  v.  Tebbs,  2  K.  &  J.  313 ;  Lee  i'.  Ferris,  ib.  357 ;  Russell  v. 
Jackson,  10  Hare,  204;  Lomax  v.  Ripley,  3  Sm.  &  Gif.  48;  Brown  v. 
Brown,  12  Md.  87  ;  Tritt  v.  Crotzer,  13  Pa.  St.  451 ;  hi  re  Dunbar,  2  Jon. 
&  La.  120. 

3  Ibid. ;  Bellasis  v.  Compton,  2  Vern.  294  ;  Lee  v.  Huntoon,  1  Hoff.  Ch. 
447;  Harris  v.  Barnet,  3  Grat.  339. 

*  Muckleston  v.  Brown,  6  Ves.  52;  Stickland  v.  Aldridge,  9  Ves.  516; 
Chamberlain  v.  Agar,  2  V.  &  B.  259;  Newton  v.  Pelham,  1  Ed.  514;  Lo- 
max V.  Ripley,  3  Sm.  &  Gif.  48;  Peralta  v.  Castro,  6  Cal.  354  ;  Cottington 
r.  Fletcher,  2  Atk.  155;  Childers  v.  Childers,  3  K.  &  J.  310;  1  De  G.  &  J. 
485. 

5  Walker  v.  Locke,  5  Gush.  91;  Wood  v.  :Midgeley,  27  Eng.  L.  &  Eq. 
206;  5  De  G.,  M.  &  G  41 ;  Ridgway  v.  Wharton,  3  De  G.,  M.  &  G.  677; 
Barkworth  v.  Young,  4  Dr.  1.  See  Skinner  v.  McDonall,  2  De  G.  &  Sra. 
265. 

71 


§  85.]  EXPRESS   TRUSTS,    ETC.  [CHAP.  III. 

is  that  if  a  trust  is  alleged  in  a  bill  it  will  be  presumed  to  be 
legally  created,  ^.  e.,  in  writing,  unless  the  contrary  appears ; 
therefore  it  must  clearly  appear  from  the  bill  that  the  alleged 
trust  rests  in  parol  only,  or  the  demurrer  will  be  overruled.^ 
It  has  also  been  decided,  that  if  the  bill  simply  omits  to  state 
that  the  trust  is  in  writing,  a  demurrer  will  be  overruled  ; 
for,  as  the  statute  only  requires  that  it  should  be  proved, 
not  created,  by  writing,  the  writing  is  no  part  of  the  trust, 
but  only  evidence  of  the  trust  to  be  adduced  at  the  hearing.^ 
In  all  cases,  however,  the  defendant  may  answer,  and  if  in 
his  answer  he  confess  the  trust  without  insisting  upon  the 
statute  of  frauds,  he  will  be  held  to  have  waived  the  benefit  of 
the  statute,  and  his  answer  may  be  used  as  a  written  declara- 
tion and  proof  of  the  trust,^  on  the  ground  that  the  plaintiff 
is  not  called  upon  to  introduce  evidence,  and  the  trust  ap- 
pears upon  the  written  answer  before  the  court. 

§  85.  Resulting  and  implied  trusts  that  arise  from  fraud 
can  be  proved  by  parol,  although  the  defendant  in  his  answer 
denies  the  trusts  and  sets  up  the  statute  in  bar;  for  such 
trusts  are  not  within  the  statute.  In  cases  of  express  trusts, 
if  the  defendant  denies  them,  or  if  he  denies  them  and  at  the 
same  time  sets  up  the  statute,  or  if  he  do  not  answer  at  all, 
only  legal  evidence  or  evidence  in  writing  can   be  given  in 

1  Cozine  v.  Graham,  2  Paige,  177. 

2  Davis  V.  Otty,  33  Beav.  540. 

3  Hampton  v.  Spencer,  2  Vern.  288;  Nab  v.  Nab,  10  :\Iod.  404;  1  Eq. 
Ca.  Ab.  404;  Gil.  Eq.  146;  Dean  v.  Dean,  1  Stockt.  425;  Whiting  v. 
Gould,  2  Wis.  552;  Woods  v.  Dille,  11  Ohio,  455;  Newton  v.  Swazey,  8 
N.  H.  9;  Rowton  v.  Rowton,  1  Hen.  &  Munf.  91;  Lingan  v.  Henderson, 

1  Bland,  236 ;  Tarleton  v.  Vietes,  1  Gihn.  470 ;  Stearnes  i'.  Hubbard,  8 
Greenl.  320 ;  Thornton  v.  Henry,  2  Scam.  219 ;  School  Trustees  v.  Wright, 
12  III.  432;  McCubbin  v.  Cromwell,  7  Gill  &  J.  157;  Kiiizie  v.  Penrose, 

2  Scam.  250;  Talbot  v.  Bowen,  1  A.  K.  Marsh.  436;  Albert  v.  Ware,  2 
:Md.  Ch.  169,  6  Md.  Ch.  66;  Chitwood  v.  Brittain,  1  Green,  Ch.  450; 
Baker  v.  HoUabaugh,  15  Ark.  322;  Cozine  v.  Graham,  2  Paige,  177; 
Tilton  V.  Tilton,  9  N.  H.  386;  Switzer  t;.  Skiles,  1  Gilm.  529;  Allen  u. 
Chambers,  4  Tred.  Eq.  125;  Hall  v.  Hall,  1  Gill,  383;  McLaurie  v.  Part- 
low,  53  111.  .340, 

72 


CHAP.  III.]  ANSWERS    IN    CHANCERY.  [§  85. 

proof.^  And  if  the  defendant  confesses  the  parol  trusts  in 
his  answer,  and  at  the  same  time  sets  up  the  statute  in  bar, 
he  will  have  the  benefit  of  the  statute,  and  the  court  will  not 
use  the  answer  as  a  written  declaration  and  proof  of  the 
trust.2  In  one  case  it  was  held  that  a  trust  appearing  from 
defendant's  answer  would  be  executed  by  the  court  although 
it  was  entirely  different  from  the  trust  alleged  in  the  bill ;  ^ 
but  this  case  has  not  been  followed.  In  a  late  case  where 
a  bill  was  filed  setting  forth  a  fraud  and  asking  to  have  a 
resulting  trust  declared  and  a  deed  set  aside,  and  the  de- 
fendant confessed  an  express  trust  by  parol,  and  offered  to 
execute  it.  Chancellor  Vroom  said,  "  I  am  inclined  to  believe 
that  if  the  present  complainant  had  filed  a  bill  claiming  this 
deed  to  be  a  deed  of  trust,  and  praying  that  it  might  be  so 
decreed  according  to  the  original  intention  of  the  parties,  the 
answer  of  the  defendant  admitting  the  trust  would  have  been 
good  evidence  of  it.     It  would  have  amounted  to  a  sufficient 

1  Trapnal  v.  Brown,  19  Ark.  3f);  Wynn  v.  Garland,  Id.  23;  Smith  v. 
Howell,  Stockfc.  349;  Whyte  v.  Arthur,  2  Green,  Ch.  521;  Broadness  v. 
Woodman,  27  Ohio  St.  353;  Matthews  v.  Denman.  24  Ohio  St.  615. 

2  Dean  v.  Dean,  1  Stockt.  425 ;  Whiting  v.  Gould,  2  Wis.  552.  The 
proposition  in  the  text  was  long  a  disputed  point.  It  was  apparently  held 
that,  as  the  defendant  by  his  answer  had  admitted  the  trust,  the  plaintiff 
was  not  called  upon  to  introduce  any  evidence.  There  was  no  danger  of 
fraud  and  perjury;  as  the  court  had  the  defendant's  statement  of  a  trust 
in  writing  under  oath,  and  as  equity  takes  hold  of  a  party's  conscience,  he 
ought  to  be  held  to  execute  the  trust  which  he  confesses,  notwithstanding 
the  statute.  On  the  other  hand,  in  bills  for  the  specific  performance  of  a 
parol  contract  for  the  sale  of  lands,  the  defendant  was  held  not  bound  to 
execute  the  contract  if  he  set  up  the  statute,  although  he  confessed  the 
contract  in  his  answer.  There  would  seem  to  be  no  reason  for  a  different 
rule  in  the  two  cases ;  and  since  it  is  now  established  that  a  defendant 
may  demur  to  a  bill  that  on  its  face  alleges  a  mere  parol  trust,  it  would 
seem  to  follow  that  the  confession  of  a  defendant  should  not  be  used  to 
override  a  positive  rule  of  law.  The  two  cases  cited  establish  the  proposi- 
tion of  the  text,  and  it  is  presumed  that  the  same  rule  would  be  held  in 
all  the  United  States.  It  is  a  question  of  pleading  and  practice,  and  it  is 
considered  here  only  incidentally  in  considering  how  trusts  maybe  created 
under  the  statute  of  frauds.  The  reader  will  find  a  full  discussion  of  the 
question  in  Story's  Eq.  Pleading,  §§  765-768. 

3  Hampton  v.  Spencer,  2  Vern.  288. 

73 


§  86.]  EXPRESS   TRUSTS,    ETC.  [CHAP.  :il. 

declaration  of  trust.  But  it  would  seem  to  be  different  when 
a  complainant  seeks  on  the  ground  of  fraud  to  set  aside  a 
deed  absolute  on  its  face,  and  confessedly  without  any  con- 
sideration paid ;  for,  to  suffer  a  defendant  in  such  case  to 
come  in  and  avoid  the  claim  by  setting  up  a  trust  would  be 
to  permit  him  to  create  a  trust  according  to  his  own  views, 
and  thereby  prevent  the  consequences  of  a  fraud."  ^  It  must 
be  observed,  that  if  the  answer  of  the  trustee  is  used  to  prove 
the  trust,  the  terms  of  the  trust  must  be  gathered  from  the 
whole  answer  as  it  stands,  for  one  part  of,  the  answer  cannot 
be  read  and  another  part  rejected.  If,  therefore,  the  plain- 
tiff read  the  answer  in  proof  of  the  trust,  he  must  at  the  same 
time  read  the  particular  terms  of  the  trust  as  therein  stated.^ 
In  States  where  the  statute  of  frauds  is  not  in  force,  trusts 
may  be  proved  by  parol,  in  opposition  to  the  defendant's 
answer  denying  them. 

§  86.  Personal  chattels  are  not  within  the  terms  of  the 
statute,  and  trusts  in  personal  property  may  be  declared  and 
proved  by  parol,  though  Mr.  Eden  said  that  "  he  had  not  been 
able  to  find  an  instance  of  a  declaration  of  trust  of  personal 
property,  evidenced  only  by  parol,  having  been  carried  into 
execution."^  And  certainly  the  English  cases  usually  referred 
to  do  not  establish  the  proposition  in  express  terms.^     There 

1  Hutchinson  v.  Tindall,  2  Green,  Ch.  357  ;  and  see  Jones  v.  Slubey, 

5  Harr.  &  J.  372;  McCubbiu  v.  Cromwell,  7  Gill  &  J.  157 ;  Haigh  v.  Kay, 
L.  R.  7  Ch.  469. 

2  Hampton  v.  Spencer,  2  Vern.  288;  Nab  v.  Nab.  10  Mod.  4-04;  Free- 
man V.  Tatham,  5  Hare,  329  ;  Slearnes  v.  Hubbard,  8  Greeul.  320;  Lewin 
on  Trusts,  46. 

3  Fordyce  v.  Willis,  3  Bro.  Ch.  (n). 

4  Nab  V.  Nab,  10  Mod.  404,  1  Eq.  Ca.  Ch.  404,  and,  Jones  v.  Nabbe, 
Gil.  Eq.,  are  usually  cited  to  sustain  the  proposition,  but  they  do  not.  In 
Crook  V.  Brooking,  2  Vern.  50,  106;  Inchiquin  v.  French,  1  Cox,  1  ;  Met- 
ham  V.  Devon,  1  P.  Wms.  529,  and  Smith  v.  AttersoU,  1  Russ.  274,  there 
were  written  declarations  of  trust,  and  the  question  was  as  to  the  effect  of 
the  writings,  though  it  was  remarked  in  these  cases  that  trusts  of  person- 
alty could  be  evidenced  by  parol.     The  case  of  Benbow  v.  Townsend,  1  My. 

6  K.  506,  was  this:  A.  had  loaned  £2,000.  and  taken  a  mortgage  in  the 
name  of  B.,  his  brother,  declaring  that  he  intended  it  for  the  benefit  of 

74 


CHAP.  III.]  PERSONAL   PROPERTY.  [§  86. 

does  not  seem  to  be  any  objection,  however,  to  the  establish- 
ment of  a  trust  in  personal  property  by  parol.  The  owner  in 
the  absence  of  a  statute  has  entire  control  of  it ;  he  can  sell 
and  transfer  it  without  writing  and  by  parol,  and  if  he  can 
transfer  it  by  parol,  there  is  no  reason  why  he  may  not  by 
parol  transfer  it  upon  such  lawful  terms,  and  to  sucli  uses  and 
trusts,  as  he  may  desire.  It  has  been  so  ruled  in  express 
decisions  in  the  United  States.^  When  a  person  sui  juris 
orally  or  in  writing  explicitly  or  impliedly  declares  that  he 

B.  After  the  death  of  A.,  his  executor  brought  a  bill  against  B.  to  obtain 
the  mortgage,  and  the  question  was  whether  the  representatives  of  A.  were 
entitled  to  the  mortgage.  It  was  held  that  B.  was  entitled  to  hold  the 
mortgage,  and  it  was  remarked  that  a  trust  of  personal  property  was  not 
within  the  statute  of  frauds.  It  will  be  observed  that  the  mortgage  was 
in  writing  in  the  name  of  B.,  and  that  the  parol  evidence  was  not  used  to 
establish  a  trust  in  B.,  but  to  rebut  a  trust  resulting  to  A.  from  his  having 
paid  the  purchase-money.  If  A.  had  taken  the  mortgage  in  his  own  name, 
but  had  declared  that  it  was  in  trust  for  B.,  the  question  would  have  fairly 
arisen,  whether  a  parol  declaration  could  create  a  trust  in  a  mortgage  of 
real  estate.  Bayley  v.  Boulcott,  4  Russ.  346,  only  establishes  the  proposi- 
tion that  a  paper  prepared  under  the  direction  of  the  owner,  but  which  she 
refused  to  execute,  will  not  create  a  trust.     But  in  McFadden  ?•.  Jenkyns, 

I  Phill.  153,  1  Hare,  458,  it  was  directly  held  that  a  parol  declaration  was 
sufficient  to  create  a  trust  in  personal  property.  If  there  are  doubts  and 
difficulty  upon  the  supposed  words,  the  court  will  give  weight  to  the  fact 
that  they  were  not  written  to  infer  that  they  may  not  be  the  deliberate 
sentiments  of  the  party.  Dipple  v.  Corles,  11  Hare,  183 ;  Patersou  v. 
Murphy,  Id.  91,  92. 

1  Hooper  v.  Holmes,  3  Stockt.  122;  Day  v.  Roth,  18  N.  Y.  448;  Rob- 
son  u.  Harwell,  6  Ga.  589;  Higgenbottom  v.  Peyton,  3  Rich.  Eq.  398; 
Kirkpatrick  v.  Davidson,  2  Kelley,  297 ;  Gordon  v.  Green,  10  Ga.  534; 
Kimball  v.  Morton,  1  Halst.  Ch.  31.  See  McFadden  v.  Jenkyns,  1  Hare, 
4G1,  1  Phill.  157 ;  Thorpe  v.  Owens,  5  Beav.  224;  George  v.  Bank  of  Eng- 
land, 7  Price,  646;  Hawkins  r.  Gordon,  2  Sm.  &  Gif.  451;  Peckham  v. 
Taylor,  3  Beav.  250;  Hunnewell  v.  Lane,  11  Met.  163;  Simms  v.  Smith, 

II  Ga.  195;  Crissman  v.  Crissman,  23  Mich.  218;  Berry /\ "Norris,  1  Drew. 
302;  Maffitt  v.  Rynd,  69  Pa.  St.  30  ;  Thatcher  a?.  Churchill,  118  Mass.  108; 
Gerrish  v.  New  Bedford  Inst,  for  Savings,  128  Mass.  159  ;  Chase  v.  Chapin, 
130  Mass.  128  ;  Davis  v.  Coburn,  128  Mass.  377  ;  Hellman  v.  Mc Williams, 
70  Cal.  449  ;  Hon  v.  Hon,  70  Ind.  135 ;  Hunt  v.  Elliott,  80  Ind.  245 ;  Pat- 
terson V.  Mills,  69  Iowa,  755;  Cobb  v.  Knight,  74  Me.  253;  Danser  v. 
Warwick,  33  N  J.  Eq.  133;  Oilman  v.  McArdle.  99  N.  Y.  451  ;  Gadsden 
V.  Whaley,  14  S.  C.  211 ;  Dickersou's  App.,  115  Pa.  St.  198. 

75 


§  86'.]  EXPRESS   TRUSTS,   ETC.  [CHAP.  III. 

holds  personal  property  in  presenti  for  another,  he  thereby 
constitutes  himself  an  express  trustee.^  Under  these  de- 
cisions trusts  may  be  created  by  parol  in  any  mere  personal 
property,  as  in  the  shares  of  corporations,  although  the  cor- 
porations themselves  own  real  estate.^  If  one  receives  notes 
of  another  in  trust  to  pay  such  person's  debt,  and  agrees  with 
creditor  to  turn  over  the  notes  or  their  proceeds  to  him,  a 
trust  arises.^  So  where  a  fund  is  received  and  held  to  invest 
for  another.*  Money  or  a  debt  secured  by  mortgage  of  real 
estate  is  a  personal  chattel,  and  a  trust  in  the  money  or  mort- 
gage debt,  and  in  the  mortgage  itself,  may  be  created  by 
parol ;  ^  and  although  a  parol  declaration  of  trust  will  not 
affect  land,  yet  if  the  land  is  to  be  converted  into  money,  and 
is  converted,  a  parol  declaration  will  bind  the  proceeds  or  the 
money .^  And  this  will  hold  tliough  the  parol  agreement  to 
hold  the  money  in  trust  is  subsequent  to  the  parol  trust  i-e- 
specting  the  land,  no  sale  by  the  parol  trustee  having  been 
contemplated."  Mr.  Hill  says  that  "  it  would  seem  to  follow 
that  legacies  and  annuities,  and  other  sums  of  money  charged 
on  land,  do  not  come  within  the  operation  of  the  statute 
respecting  parol  declarations  of  trusts  in  land."  ^  But  all 
chattels  real  are  within  the  statute,  and  trusts  in  them  must 
be  evidenced  in  writing,  as  in  case  of  freehold  or  leasehold 
interests.^     The  same  remarks  are  to  be  made  in  relation  to 

1  Tyler  v.  Tyler,  25  Brad.  (111.)  339. 

2  Porter  v.  Bank  of  Rutland,  19  Vt.  410;  Forster  v.  Hale,  3  Ves.  Jr. 
696 ;  5  Ves.  308 ;  Ashton  v.  Langdale,  4  De  G.  &  Sm.  402 ;  4  Eng.  L.  & 
Eq.  80;  Myers  v.  Perigal,  16  Sim.  533  ;  14  Eng.  L.  &  Eq.  229;  Hilton  v. 
Giraiid,  1  De  G.  &  Sm.  183;  Kilpin  v.  Kilpin,  1  M.  &  K.  520;  Wheatley 
V.  Purr,  1  Keen,  551. 

3  Walden  v.  Karr,  88  111.  49. 

4  Clapp  V.  Emery,  98  111.  523. 

^  Bellasis  v.  Compton,  2  Vern.  294;  Benbow  v.  Townsend,  1  M.  &  K. 
510;  Childs  v.  Jordon,  106  Mass.  322  :  Hackney  v.  Brooman,  62  Barb.  650. 

6  Maffitt  V.  Rynd,  69  Pa.  St.  30;  Mohn  v.  Mohn,  112  Ind.  285;  Wise- 
man V.  Baylor,  69  Tex.  63. 

'  Thomas  v.  Merry,  113  Ind.  83. 

®  Hill  on  Trustees,  58  (n.) ;  see  note  1,  p.  74. 

9  Skett  V.  Whitmore,  Freem.  2S0  ;  Forster  v.  Hale,  3  Ves.  Jr.  696; 
Riddle  v.  Emerson,  1  Vern.  108;  Hutcbins  v.  Lee,  1  Atk.  447;  Bellasis  v. 

76 


CHAP.  III.]  PERSONAL    PROPERTY,  [§  86. 

parol  trusts  of  personal  property  that  were  made  in  relation 
to  parol  trusts  of  real  estate  where  such  trusts  are  possible.' 
The  subject-matter  of  the  trust  must  be  clearly  ascertained, 
as  well  as  the  purposes  of  the  trust  and  the  persons  who  are 
to  take  the  beneficial  interests.  Loose,  vague,  and  indefinite 
expressions  are  insufficient  to  create  the  trust.^  A  mere 
declaration  of  a  purpose  to  create  a  trust  is  of  no  value  unless 
carried  into  effect.  A  simple  promise  of  a  future  donation 
without  consideration  good  or  valuable  creates  no  trust  that 
equity  can  enforce.^  If  the  trust  is  once  created  in  writing 
it  cannot  be  varied  by  parol,  and  if  it  is  once  created  by  parol 
it  cannot  be  altered  or  varied  by  other  declarations  of  the 
trustee ;  as  where  a  daughter  delivered  to  her  father  -S7000 
upon  the  parol  trust  that  he  would  secure  the  money  in  trust 
for  her  and  invest  it  for  her  sole  benefit,  and  the  father  made 
his  will  giving  said  notes  to  two  trustees  to  receive  and  pay 
over  the  income  and  interest  to  the  daughter  during  her  life, 
and  at  her  decease  to  pay  the  principal  to  such  persons  as  she 
by  her  last  will  should  direct  and  appoint,  and  in  default  of 
such  appointment,  to  her  heirs-at-law :  the  father  died,  and 
his  estate  turning  out  insolvent,  she  brought  a  bill  praying 
that  the  notes  might  be  delivered  to  some  person  to  be  ap- 
pointed by  the  court  as  trustee  for  her.  Mr.  Justice  Wilde, 
in  delivering  the  opinion  of  the  court,  said,  "  It  is  very  clear 
that  the  father,  his  executor,  and  his  heirs  and  creditors,  are 
bound  by  the  trust.  It  was  not  in  the  power  of  the  trustee  to 
divest  or  defeat  the  trust  without  the  consent  of  the  cestui  que 
trust,  except  by  a  sale  of  the  trust  property  to  a  bona  fide  pur- 
chaser, for  a  valuable  consideration,  and  without  notice  of  the 
trust.  Nor  could  the  trustee  vary  the  terms  of  the  trust,  or 
declare  any  new  trust,  to  the  prejudice  of  the  cestui  que  trust, 
unless  with  her  consent."  * 

Compton,  2  Veni.  291;  Gardner  v.  Rowe,  5  Russ.  258;  Otis  v.  Sill,  8 
Barb.  102. 

1  Ante,  §  77,  n.  4,  p.  GO;   Crissman  v.  Crissraan,  23  Mich.  218. 

2  Bailey  v.  Irwin,  72  Ala.  505;  a  parol  trust  must  be  clear,  and  the 
evidence  of  it  convincing. 

8  Allen  V.  Withrow,  110  U.  S.  119. 
*  Hunnewell  v.  Lane,  11  Met.  163. 

77 


§  88.]  EXPRESS    TRUSTS,    ETC.  [CHAP.  III. 

§  87.  Under  the  statutes  relating  to  the  execution  of  last 
wills  and  testaments,  no  parol  declaration  can  take  effect  as 
a  nuncupative  will,  except  in  the  case  of  soldiers  in  actual  ser- 
vice, and  mariners  at  sea.  These  persons  may,  accordino;  to 
the  statutes  of  nearly  all  the  States,  make  nuncupative  wills 
of  their  wages  and  other  personal  property.  It  would  seem 
to  follow  that  they  can  create  valid  trusts  in  their  wages  and 
other  personal  property  by  nuncupative  wills  so  made  as  to  be 
proved  and  allowed  in  the  courts  of  probate,  or  other  courts 
having  jurisdiction  in  such  matters.  Personal  property  may 
be  so  given  and  delivered  to  one  in  trust  for  another  for  a 
particular  purpose  that  it  will  be  good  as  a  donatio  causa  mortis, 
and  the  trust  will  be  executed  by  courts  of  equity ;  ^  but  courts 
do  not  favor  donations  mortis  causa.  It  has  been  held  that 
a  gift,  mortis  causa,  of  a  fund  in  trust  to  be  disposed  of  for 
benevolent  purposes,  at  the  absolute  and  unlimited  discretion 
of  the  donee,  could  not  be  sustained.^ 

§  88.  An  attempt  was  made  at  one  time  to  hold  gifts  to 
charitable  uses  as  excepted  from  the  statute  ;  but  Lord  Talbot 
decided,^  and  Lord  Hardwicke  affirmed  the  decision,*  and 
Lord  Northington  said  every  man  of  sense  must  subscribe  to 
it,  that  a  gift  to  a  charity  must  be  treated  on  the  same  footing 
with  any  other  disposition.^ 

1  Blunt  V.  Burrow,  4  Bro.  Ch.  75,  and  Perkins's  notes,  1  Ves.  Jr  546, 
and  Sumner's  notes;  Moore  v.  Darton,  4  De  G.  &  Sm.  517,  7  Eng.  L.  & 
Eq.  131;  Borneman  v.  Sedlinger,  3  Shep.  42f),  8  Shep.  185;  Constant  v. 
Schuyler,  1  Paige,  316.  And  see  Tate  v.  Leithhead,  1  Kay,  658.  Ilam- 
bvooke  V.  Simmons,  4  Russ.  25,  Hill  v.  Hill,  8  M.  &  W.  401.  Drury  v. 
Smith,  1  P.  Wms.  404;  1  Story,  Eq.  Jur.  §  607. 

2  Dole  V.  Lincoln,  31  Me.  422.  But  the  court  decided  the  case  on 
the  ground:  (1)  that  there  was  not  a  sufficient  delivery  to  con.stitute  a 
good  gift  mortis  causa,  and  (2)  that  if  the  gift  had  been  good  in  form,  the 
trust  for  the  charity  could  not  be  executed  on  account  of  its  vagueness 
and  uncertainty. 

3  Lloyd  V.  Spillett,  3  P.  Wms.  344;  Lewin  on  Trusts,  61. 

4  Lloyd  V.  Spillett,  2  Atk.  1.50,  Barn.  384;  Adlington  v.  Cann,  3  Atk. 
1.50. 

5  Boson  V.  Statham,  1  Eden,  513  ;  Thayer  v.  "Wellington,  9  Allen, 
283. 

78 


CHAP.  III.]  STATUTE   OF   WILLS.    .  [§  90. 

§  89.  In  addition  to  the  statute  of  frauds,  which  forbids  the 
creation  of  express  trusts  in  lands  unless  the  trust  is  evidenced 
by  some  writing  signed  by  the  party,  there  are  statutes  in 
every  State  that  regulate  the  execution  of  wills.  By  the 
original  statute  of  frauds,  all  wills  to  pass  real  estate  were  re- 
quired to  be  in  writing,  signed  by  the  testator,  and  attested 
in  his  presence  by  three  or  four  witnesses.^  This  statute  has 
been  substantially  adopted  in  all  the  States,  though  there  is 
some  diversity  in  the  number  of  witnesses  required.  By  this 
statute  nuncupative  wills  of  personal  chattels  were  not  pro- 
hibited, but  they  were  placed  under  such  regulations  that 
they  ceased  to  be  in  common  use.  Written  wills  of  personal 
property  were  not  required  to  be  attested  by  witnesses.  But 
in  England  at  the  present  time,  and  in  most  of  the  United 
States,  a  will  to  pass  personal  property  must  be  executed  with 
the  same  formalities,  and  attested  by  the  same  number  of 
witnesses,  that  are  required  to  wills  affecting  real  estate.^ 

§  90.  It  follows  from  these  statutes,  that  no  trusts  in  real 
or  personal  estate  can  be  created  by  any  declaration  of  trust 
in  a  will,  unless  the  will  is  executed  in  such  form  that  it  can 
be  allowed  in  the  court  of  probate  having  jurisdiction,  and  in 
such  form  that  it  will  pass  the  estate  that  it  is  intended  to 
operate  upon.  Mr.  Hill  lays  down  the  proposition,  that  if 
an  instrument  containing  a  declaration  of  trust  by  reason  of 
some  informality  cannot  be  supported  as  a  will,  it  may,  never- 
theless, if  signed  by  the  party,  be  a  sufficient  evidence  of  the 
creation  of  the  trust  to  take  it  out  of  the  statute. ^     And  Lord 

1  29  Car.  II.  c.  3,  §  5. 

2  It  is  not  within  the  genera]  purposes  of  this  treatise  to  enter  into  a 
discussion  of  the  manner  of  executing  wills  in  England  and  the  several 
States  of  the  Union.  The  reader  will  find  the  laws  of  the  various  States 
fully  and  accurately  stated  in  the  learned  notes  of  the  Hon.  J.  C.  Perkins 
to  1  Jarman  on  Wills,  pp.  113-135  (4th  Am.  ed.),  as  to  real  estate,  and 
pp.  135-144,  as  to  personal  property. 

8  Hill  on  Trustees,  61.  Mr.  Hill  cites  Nab  v.  Nab,  10  :\Iod.  404,  1  Eq. 
Ca.  Ab.  404,  Gil.  Eq.  14G.  The  case  was  this  :  A  daughter  put  into  her 
mother's  hands  £180,  and  afterwards  made  a  will,  which  was  duly  exe- 
cuted, and  appointed  her  mother  executrix,  but  made  no  mention  of  the 

79 


§  91.]  EXPRESS   TRUSTS,    ETC.  [CHAP.  Ill, 

Northington  declared  his  opinion  generally,  "  that  a  writing 
signed  by  the  party  who  has  power  to  make  the  trust,  declar- 
ing a  trust  upon  the  will,  is  good,  though  such  writing  be  not 
attested  by  three  witnesses  according  to  the  solemnities  of 
the  statute  of  frauds."  ^  But  these  propositions,  in  the  broad 
form  in  which  they  are  stated,  are  clearly  not  law.  The 
dictum  of  Lord  Northington  stands  alone,  and  the  highest 
authorities  are  in  opposition  to  it.^ 

§  91.  There  is  one  state  of  facts  in  which  the  above  propo- 
sition of  Mr.  Hill  may  be  good  law.  If  a  testator  in  making 
his  will  should  declare  by  way  of  recital  that  a  certain  parcel 
of  land,  or  sum  of  money,  was  held  by  him  upon  trusts  therein 
stated,  and  the  will  should  be  so  informally  executed  that  it 
could  not  be  proved  in  a  court  of  probate,  still,  if  it  was  signed 
by  him,  it  would  seem  to  be  as  good  proof  of  the  trust  as 
letters  and  other  memoranda  signed  by  the  party  and  found 
after  his  death.  In  such  case  the  will  could  have  no  effect 
in  creating  the  trust,  it  would  be  simply  proof  in  writing  of 
a  trust  already  created  and  existing  at  the  date  of  the  will. 
Bat  if  the  validity  of  the  trust  in  any  way  depended  upon  the 
effect  of  the  will  in  transferring  the  title  to  the  property,  the 
will  could  not  be  used  in  evidence,  unless  it  was  itself  so 
executed  as  to  be  valid  as  a  will.-^      In  all  cases  where  trusts 

£180.  After  making  the  will  she  desired  her  mother  to  give  the  money 
to  a  third  person.  After  the  death  of  the  daughter,  this  third  person 
brought  a  bill  in  chancery,  alleging  that  the  mother  held  this  money  in 
trust.  The  mother  admitted  the  trust  in  her  answer,  and  set  up  that  she 
was  not  to  give  the  money  except  at  her  option.  The  court  held  that  the 
trust  was  admitted  by  the  answer,  and  that  the  trust  should  be  executed. 
It  will  be  observed  that  the  question  as  to  a  will  informally  executed  did 
not  arise.  The  question  was  wholly  upon  the  effect  of  the  defendant's 
answer  in  chancery.  And  the  court,  as  reported  in  1  Eq.  Ca.  Ab.  404, 
said  that  if  the  mother  had  set  up  the  statute  of  frauds  the  trust  could  not 
have  been  carried  into  effect. 

1  Boson  V.  Statham,  1  Eden,  514. 

2  Adlington  v.  Cann,  .3  Atk.  151;  Muckleston  v.  Brown,  6  Ves.  67j 
Stickland  v.  Aldridge,  9  Ves.  519;  Puleston  v.  Puleston,  Finch,  312; 
Thayer  v.  Wellington,  9  Allen,  283;  Burlington  University,  22  Iowa,  30. 

3  Anding  v.  Davis,  38  Miss.  574. 
80 


CHAP.  III.]  STATUTE   OP   WILLS.  [§  92. 

originate  in  a  will,  the  will  must  be  executed  according  to 
the  statute,  or  it  cannot  be  used  as  a  declaration  and  proof 
of  the  trusts. 

§  92.  Mr.  Lewin  clearly  states  the  law  and  gives  the  rea- 
sons, as  follows :  "  We  must  bear  in  mind  that  the  absolute 
owner  of  property  combines  in  himself  both  the  legal  and 
equitable  interest,  and  when  the  legislature  enacts  that  no 
devise  or  bequest  of  property  shall  be  valid  without  certain 
ceremonies,  a  testator  cannot  by  an  informal  instrument  affect 
the  equitable  any  more  than  the  legal  estate,  for  the  one  is  a 
constituent  part  of  the  ownership  as  much  as  the  other.  Thus 
a  person  cannot,  but  by  will  duly  signed  and  attested,  give 
a  sum  of  money  originally  and  primarily  out  of  land  ;  for  the 
charge  is  part  of  the  land  and  to  be  raised  out  of  it  by  sale 
or  mortgage. 1  And  if  a  testator  by  will  duly  signed  and  at- 
tested give  lands  to  A.  and  his  heirs  '  upon  trust,'  but  without 
specifying  the  particular  trust  intended,  and  then  by  a  paper 
not  duly  signed  and  attested,  as  a  will  or  codicil,  declare  a 
trust  in  favor  of  B.,  the  beneficial  interest  under  the  will  is 
a  part  of  the  original  ownership,  and  cannot  be  passed  by  the 
informal  paper,  but  will  descend  to  the  heir-at-law.^  Again, 
if  a  legacy  be  bequeathed  by  a  will  in  writing  to  A.  '  upon 
trust,'  and  the  testator  by  parol  express  an  intention  that  it 
shall  be  held  by  A.  upon  trust  for  B.,  such  a  direction  is  in 
fact  a  testamentary  disposition  of  the  equitable  interest  in 
the  chattel,  and  therefore  void  by  the  statute,  which  imposes 
the  necessity  of  a  written  will.  If  it  be  said  that  such  expres- 
sion of  intention,  though  void  as  a  devise  or  bequest,  may 
yet  be  good  as  a  declaration  of  trust,  and,  therefore,  that  where 
the  legal  estate  of  a  freehold  is  well  devised  a  trust  may  be 
engrafted  upon  it  by  a  single  note  in  writing ;  and  where  a 
personal  chattel  is  well  bequeathed,  a  trust  of  it,  as  excepted 
from  the  seventh  section  of  the  statute  of  frauds,  may  be 
raised  by  a  mere  parol  declaration,  —  the  answer  is,  that  a 
wide  distinction  exists  between  testamentary  dispositions  and 

1  Bnidenell  v.  Boughton,  2  Atk.  272. 

2  Adlington  v.  Caiin,  3  Atk.  151. 

VOL.  I.— 6  81 


§  93.]  EXPRESS   TRUSTS,   ETC,  [CHAP.  III. 

declarations  of  trust.  The  former  are  ambulatory  until  the 
death  of  the  testator,  but  the  latter  take  effect,  if  at  all,  at 
the  time  of  the  execution.  '  The  deed,'  observed  Lord  Lough- 
borough, in  a  similar  case,  '  is  built  on  the  will ;  if  the  will  is 
destro3'ed,  the  deed  I  should  consider  absolutely  gone ;  the 
will  without  the  deed  is  incomplete,  and  the  deed  without 
the  will  is  a  nullity.'  ^  And  Mr.  Justice  Buller  observed, '  A 
deed  must  take  place  upon  its  execution  or  not  at  all ;  it  is 
not  necessary  for  a  deed  to  convey  an  immediate  interest  in 
possession,  but  it  must  take  place  as  passing  an  interest  to  be 
conveyed  at  the  execution ;  but  a  will  is  quite  the  reverse, 
and  can  only  operate  after  death.'  ^  We  may  therefore  safely 
assume,  as  an  established  rule,  that  if  the  intended  disposition 
be  of  a  testamentary  cliaracter  and  not  to  take  effect  in  the 
testator's  lifetime,  but  ambulatory  until  his  death,  such  dis- 
position is  inoperative,  unless  it  be  declared  in  writing  in 
strict  conformity  with  the  statutory  enactments  regulating 
devises  and  bequests."  ^ 

§  93.  There  is  an  additional  reason  in  the  United  States 
why  a  will  or  testamentary  paper  informally  executed  cannot 
be  used  as  an  original  declaration  of  trust.  In  nearly  alL  the 
United  States  no  will  can  be  used  to  prove  the  transfer  of 
any  interest,  legal  or  equitable,  in  property  of  the  testator, 
unless  such  will  has  been  duly  proved,  allowed,  and  re- 
corded, in  a  court  of  probate  having  jurisdiction  over  it;* 
and  if  such  will  is  to  be  used  to  affect  the  title  to  property 
in  any  State  other  than  the  one  where  it  is  originally  proved, 
it  must  be  recorded  in  such  other  State ;  ^  so  a  court  in 
equity  has  no  jurisdiction  over  trusts  created  by  the  will  of  a 

1  Habergham  v.  Vincent,  2  Ves.  Jr.  209.  ^  ibid. 

3  Lewin  on  Trusts,  66  (2d  Am.  ed.). 

*  Rex  V.  Netherseal,  4  T.  R.  258;  1  Wms.  Ex'rs,  172;  Strong  v  Per- 
kins, 3  X.  H.  517;  Kittredge  v.  Fulsome,  8  X.  H.  98;  2  Redf.  on  Wills,  10; 
Metham  v.  Devon,  1  P.  Wms.  529;  Inchiquin  r.  French,  1  Cox,  1  And 
see  Mr.  Lewin's  remarks  upon  this  last  case,  Lewin  on  Trusts,  p.  49 

5  Wilson  V.  Tappan,  6  Ohio,  172;  Bailey  ;;.  Bailey,  8  Ohio,  239;  Ives 
V.  Allyn,  12  Vt.  589;  Campbell  v.  Sheldon,  13  Pick.  'S;  Campbell  v.  Wal- 
lace, 10  Gray,  162 ;  2  Redf.  on  Wills,  10. 
82' 


CHAP.  III.]  STATUTE   OP   WILLS.  [§  93. 

foreigner,  a  certified  copy  of  which  is  not  filed  in  the  probate 
court  of  the  jurisdiction  where  the  remedy  is  sought.^  But  no 
will  can  be  proved  and  allowed  in  a  probate  court  unless  it  is 
duly  executed  under  the  statutes  in  force  where  it  is  made. 
This  rule  does  not  interfere  with  the  doctrine  that  a  testator 
may  by  his  last  will  refer  to  and  incorporate  therein  any 
document  or  paper  which  is  in  actual  existence  at  the  time, 
and  is  thus  made  a  part  of  his  will.^  In  such  cases,  all  such 
papers  must  be  clearly  identified  and  probated  and  recorded 
with  the  will  as  a  part  thereof,  and  such  papers  must  be  in 
actual  existence  at  the  time  of  making  the  will.  If  they  are 
made  afterwards,  they  must  be  so  executed  that  they  may  be 
probated  as  a  revocation  of  the  will,  or  as  a  codicil  thereto, 
or  they  will  have  no  effect ;  ^  as  where  a  testator  made  an 
absolute  devise  of  an  estate,  and  left  a  declaration  of  trust 
not  referred  to  in  the  will,  and  not  duly  attested,  and  not 
communicated  to  the  devisee  nor  assented  to  by  him  in  the 
testator's  lifetime,  the  devisee  is  entitled  to  both  the  legal 
and  beneficial  interest,  because  it  is  a  good  devise  on  the  face 
of  the  will,  and  the  informal  declaration  of  trust  cannot  be 
probated  or  admitted  in  evidence.^     So,  if  a  testator  should 

1  Campbell  v.  Wallace,  2  Gray,  162. 

2  1  Wms.  Ex'rs,  289,  290,  and  notes;  Willington  v.  Adam,  1  V.  &  B. 
445;  Habergham  v.  Vincent,  2  Ves.  Jr.  228;  Smart  v.  Prujean,  6  Ves.  560; 
Goods  of  Lady  Truro,  L.  R.  1  P.  &  D.  201 ;  Doe  v.  Walker,  12  M.  &  W. 
591,  600;  In  re  Earle's  Trusts,  4  K.  &  J.  673,  Allen  v.  Maddock,  11 
Moore,  P.  C.  201;  Croker  v.  Hertford,  4  Moore,  P.  C.  339,  363,  Thayer 
V.  Willington,  9  Allen,  283. 

3  Adlington  v.  Cann,  3  Atk.  141-152;  Briggs  v.  Penny,  3  De  G.  &  Sm. 
547,  3  Mac.  &  G.  546;  8  Eng.  L.  &  Eq.  231;  Johnson  v.  Ball,  5  De  G.  & 
Sm.  85;  Dawson  v.  Dawson,  1  Chev.  148;  Johnson  c.  Clarkson,  3  Rich. 
Eq.  305 ;  Thayer  v.  Willington,  9  Allen,  283.  How  far  papers  refei-red 
to  in  a  will  become  part  thereof  may  be  a  very  troublesome  question. 
Statutes  require  last  wills  to  be  solemnly  attested  or  witnessed  by  a  certain 
number  of  witnesses.  Whether  papers  referred  to  in  the  will  as  in  actual 
existence  but  not  attested  by  the  witnesses  can  be  probated,  and  if  they 
cannot  be  probated  whether  they  can  have  any  effect  upon  the  disposition 
made  by  the  will,  or  of  the  construction  of  it,  has  not  been  determined. 

4  Adlington  v.  Cann,  3  Atk.  141;  Stickland  i>.  Aldridge,  9  Ves.  519; 
Briggs  V.  Peimy,  3  D«  G  &  Sm.  517;  3  Mac.  &  G.  546;  8  Eng.  L.  &  Eq. 
231;  Wallgrave  v.  Tebbs,  2  K.  &  J.  313;  Lee  v.  Ferris,  2  K.  &  J.  357; 

83 


§  94.]  EXPRESS   TRUSTS,   ETC.  [CHAP.  HI. 

devise  real  or  personal  property  to  A.  in  trust  and  state  no 
trusts  upon  which  A.  is  to  hold,  no  paper  not  referred  to  in 
the  will,  and  not  duly  executed,  could  be  received  in  evi- 
dence to  prove  the  trusts,  nor  could  A.  hold  the  beneficial 
interest,  because  he  is  stamped  with  the  character  of  a  trus- 
tee ;  but  he  would  hold  only  the  legal  title,  while  the  benefi- 
cial interest  would  descend  or  result  to  the  testator's  heirs- 
at-law.i  But  if  any  words  in  the  will  itself  clearly  qualify  an 
absolute  devise  in  the  will,  and  show  the  testator's  intent 
that  others  should  share  the  property,  the  devisee  holds  in 
trust.2 

§  94.  Even  at  common  law  parol  evidence  could  not  be 
received  to  convert  a  devisee  under  a  will  in  writing  into 
a  trustee.  In  Vernon's  Case  it  was  resolved  that  a  devise 
implies  a  consideration,  and  therefore  that  it  cannot  be 
averred  or  proved  by  parol  to  be  for  the  use  of  another  ;3 
"  for  that,"  said  Lord  Ch.  B.  Gilbert,  "  were  an  averment 
contrary  to  the  design  of  the  will  appearing  m  the  words ; "  ■* 
and  in  Lady  Portington's  Case,  the  court  refused  to  receive 
parol  evidence,  not  only  because  of  the  statute  of  frauds,  but 
also  from  the  tiature  of  the  thing.^     For  the  same  reason,  at 

Russell  V.  Jackson,  10  Hare,  204;  Lomax  v.  Ripley,  3  Sm.  &  Gif.  48; 
■Brown  v.  Brown,  12  Md.  87:  Thayer  v  Willington,  9  Allen,  283;  Haber- 
gham  V.  Vincent,  5  T.  R.  92,  2  Ves.  Jr.  204;  Rose  v.  Cunningham,  12  Ves. 
29 ;  Johnson  v.  Ball,  5  De  G.  &  Sm.  85 ;  Langdon  v.  Astor,  3  Duer,  477 ; 
Thompson  v.  Quimby,  2  Brad.  449;  Tucker  v.  Seaman  s  Aid  Soc,  7  Met. 
404;  In  re  Sothron,  2  Curteis,  831 ;  Ferraris  v.  Hertford,  3  Curteis,  468; 
Waggstaff  V.  Waggstaff,  2  P.  Wms.  258;  Marlborough  v,  Godolphin, 
2  Ves.  Sen.  76. 

1  Ibid. ;  Muckleston  v.  Brown,  6  Ves.  52 ;  Boson  v.  Statham,  1  Ed.  513. 

2  Major  V.  Herndon,  78  Ky.  128. 

3  Vernon's  Case,  4  Coke,  R.  4  a. 

4  Gilbert  on  Uses,  162. 

s  Lady  Portington's  Case,  1  Salk.  162.  It  is  stated  by  Jenkins  that  at 
common  law  parol  proof  might  be  received  to  engraft  a  trust  upon  a  writ- 
ten will.  Jenk.  3  Cent.  Ca.  26.  But  by  comparing  the  case  cited  by 
Jenkins  with  the  same  case  in  Fitzherb.  Ch  Devise,  22,  it  will  be  seen 
that  Jenkins  was  mistaken  in  the  point  decided.  And  see  Lewin  on 
Trusts,  58  (2d  Am.  ed.). 
84 


CHAP.  III.]  VALUABLE   CONSIDERATION.  [§  95. 

common  law  parol  evidence  of  a  trust  was  always  inadmis- 
sible against  a  legatee '  under  a  written  will.^  Until  a  late 
statute  2  in  England  a  person  appointed  executor  had  the 
title  to  all  the  personal  property,  and  was  entitled  to  take 
the  surplus,  after  paying  debts  and  legacies,  beneficially  to 
himself,  and  no  parol  evidence  was  admissible  to  convert  him 
into  a  trustee  for  the  heirs  or  next  of  kin.^  But  the  authori- 
ties seem  to  establish  that  if  there  was  any  circumstance 
appearing  on  the  face  of  the  will,  as  the  gift  of  a  legacy  to 
the  executor,  the  law  presumed  that  it  was  not  intended  that 
he  should  take  the  surplus  beneficially  ;  the  executor  might 
rebut  that  presumption  by  parol  evidence,*  when,  of  course, 
the  next  of  kin  might  fortify  the  presumption  by  opposing 
parol  evidence  in  contradiction.  Wliere,  however,  the  will 
itself  invested  the  executor  with  the  character  of  trustee,  as 
by  giving  him  a  legacy  "  for  his  trouble,"  or  by  styling  him 
a  "  trustee  "  expressly,  the  prima  facie  title  to  the  surplus 
was  then  in  the  next  of  kin,  and  parol  evidence  was  not 
admissible  to  disprove  the  express  intention.^  By  the  act 
referred  to  in  England,  and  by  statutes  in  all  the  United 
States,  an  executor  is  made  prima  facie  a  trustee  for  the  next 
of  kin.^ 

§  95.  Where  an  agreement  is  entered  into  for  a  valuable 
and  legal  consideration,  and  a  trust  is  intended,  the  mere 
form  of  the  instrument  is  not  very  material ;   for  if  the  trust 

^  Porey  (;.  Juxon,  Nels.  135;  Fane  v.  Fane,  1  Vern.  30. 

2  11  Geo.  IV.  and  1  W.  IV.  c.  40. 

8  Langhara  v.  Sandford,  19  Ves.  641 ;  White  v.  Williams,  3  Ves.  &  B. 
72;  Coop.  58. 

*  Walton  V.  Walton,  14  Ves.  322 ;  Clennell  v.  Lewthwaite,  2  Ves.  Jr. 
477:  Langham  o.  Sandford,  17  Ves.  442;  Lynn  v.  Beaver,  1  T.  &  R.  66. 

5  Rachfield  v.  Careless,  2  P.  Wms.  158;  Langham  v.  Sandford,  17  Ves. 
435;  19  Ves.  641 ;  Gladding  v.  Yapp,  5  I\Iad.  42  ;  White  v  Evans,  14  Ves. 
21 :  Walton  v.  Walton,  14  Ves.  322;  Read  v.  Steadman,  26  Beav.  495. 

®  Love  V.  Gaze,  8  Beav.  472;  Jnler  v.  Juler,  29  Beav.  34;  Harrison  v. 
Harrison,  2  Hem.  &  Mill.  237;  Read  v.  Steadman,  26  Beav.  495;  Hill  v. 
Hill,  2  Hayw.  298;  Paup  v.  Mingo,  4  Leigh,  163;  Hays  v.  Jcickson,  6 
Mass.  1.53;  Wilson  v.  Wilson,  3  Bin.  559;  Darrah  r.  McNair,  1  Ash.  240; 
2  Story's  Eq.  Jur.  §§  1208-1210,  and  notes;  Lewin  on  Trusts,  50. 

85 


§  95.]  EXPRESS   TRUSTS,   ETC.  [CHAP.  III. 

is  not  perfectly  created  or  executed  by  the  instrument,  a  court 
of  equity  can  enforce  it  as  a  contract.^  Where  a  husband 
had  treated  his  wife  with  extreme  cruelty,  so  tliat  she  left  him 
and  instituted  proceedings  for  a  divorce,  and  he  gave  a  note 
to  a  trustee  for  his  wife,  in  consideration  of  her  giving  up 
the  said  suit  and  resuming  cohabitation  with  him,  it  was  held 
that  the  consideration  was  illegal ;  but  the  dissent  by  Holmes 
is  far  weightier  than  the  majority  opinion.^  If  a  deed  is 
given  by  B.  to  A.  on  condition  that  A.  will  support  B.  and  C, 
a  trust  is  created  that  equity  will  enforce.^  Wherever  a  valu- 
able consideration  is  paid,  the  contract  will  be  executed  as 
near  to  the  intention  of  tlie  parties  as  possible ;  as  where  for 
a  valuable  consideration  a  man  executed  a  deed  of  land  pur- 
porting to  be  under  his  hand  and  seal,  but  no  seal  was  af- 
fixed, by  reason  of  which  defect  the  legal  title  did  not  pass, 
the  court  held  that  the  defective  deed  might  be  used  as  a 
declaration  of  trust,  and  that  the  holder  of  the  legal. title 
should  hold  it  in  trust  for  the  grantee  in  the  deed,  and  that 
he  should  be  ordered  to  convey;*  and  where  a  husband  for  a 
meritorious  consideration  conveyed  personal  property  directly 
to  his  wife  by  deed,  which  could  not  operate,  because  a  hus- 
band cannot  convey  directly  to  his  wife,  the  court  ordered  the 
deed  to  stand  as  a  declaration  of  trust  for  the  wife,  and  the 
husband's  representatives  to  hold  the  legal  title  in  trust  for 
her.5  The  authorities  establish  this  proposition,  that  where 
there  is  a  valuable  consideration  the  court  will  enforce  the 
trust,  though  it  is  not  perfectly  created,  and  though  the  in- 
struments do  not  pass  the  title  to  the  property,  if  from  the 
documents  the  court  can  clearly  perceive  the  terras  and  con- 
ditions of  the  trust,  and  the  parties  to  be  benefited.      In  such 

1  Baldwin  v.  Humphrey,  44  X.  Y.  C09 ;  Taylor  v.  Pownal,  10  Leigh, 
183. 

2  IMerrill  v.  Peaslee,  146  Mass.  460. 
8  Benscotter  v.  Green,  60  jNId.  .327. 

*  Wadsworth  v.  Wendell,  5  Johns.  Ch.  224;  Haskill  r.  Freeman,  1 
Wins.  Eq.  (N.  C.)  34. 

^  Huntley  v.  Huntley,  8  b-ed.  Eq.  250 ;  Livingston  v.  Livingston,  2 
Johns.  Ch.  537 ;  Garner  r.  Garner,  1  Busb.  Eq.  1 ;  Jones  v.  Obinchain, 
10  Grat.  259 ;  Fellows  v.  Heermaus,  4  Lansing,  230. 

86 


CHAP.  III.]  VALUABLE   CONSIDERATION.  [§  96. 

cases,  effect  is  given  to  the  consideration  to  carry  out  the  in- 
tentions of  the  parties,  though  informally  expressed.  But  if 
no  cestui  que  trust  is  named,  or  so  designated  that  he  can  be 
identified,  the  court  cannot  carry  a  trust  into  effect,  however 
clearly  it  may  be  created  in  other  respects.^  Even  if  a  pur- 
chaser of  land  direct  a  declaration  of  trust  to  be  inserted  in 
the  deed  to  him,  he  will  be  bound  by  it,  though  it  is  voluntary 
on  his  part.2  And  if  no  trustee's  name  is  inserted  in  the 
deed,  it  may  be  reformed,  and  a  suitable  trustee  may  be  ap- 
pointed and  inserted.^ 

§  96.  And  where  there  is  no  valuable  consideration^  yet  if 
the  settlor,  by  a  clear  and  explicit  declaration  duly  executed 
and  intended  to  be  final  and  binding  upon  him,  makes  him- 
self a  trustee,  courts  of  equity  will  enforce  the  trust,  whether 
the  nature  of  the  property  be  legal  or  equitable,  and  whether 
it  be  capable  or  incapable  of  transfer.*  If  it  is  a  mere 
agreement,  without  consideration,  to  execute  a  declaration 
of  trust,  courts  will  not  act  upon  it ;  but  if  a  party  has 
declared  himself  to  be  a  trustee,  the  beneficial  interest  in 
the   property   becomes  vested  in  the   cestui  que  trust  with- 

^  Dillage  v.  Greenough,  45  N.  Y.  438;  Ownes  v.  Ownes,  8  C.  E. 
Green,  60. 

2  Reilly  v.  Whipple,  2  S.  C  277 

8  Burnside  v.  Wayman,  49  ISlo.  356. 

4  Ex  parte  Pye,  18  Ves.  140;  Thorpe  v.  Owen,  5  Beav.  224;  Wilcocks 
V.  Hannyngton,  5  Ir.  Ch.  38;  Draiser  v.  Brereton,  15  Beav.  221 ;  Gray  v. 
Gray,  2  Sim.  (n.  s.)  273 ;  Vandenberg  v.  Pahner,  4  Kay  &  J.  204 ;  Sta- 
pleton  V.  Stapleton,  14  Sim.  186;  Searle  v.  Law,  15  Sim.  99;  Bridge  v. 
Bridge,  16  Beav.  315;  Steele  v.  Waller,  28  Beav.  466 ;  Paterson  v.  Murphy, 
11  Hare,  88;  Bentley  v.  MacKay,  15  Beav.  12;  Ownes  v.  Ownes,  8  C.  E. 
Green,  60;  Crawford's  App.,  61  Pa.  St.  52;  Morgan  v.  Malleson,  L.  R. 
10  Eq.  475  ;  McFadden  v.  Jenkyns,  1  Hare,  471.  In  the  last  case,  Sir  J. 
Wigram  said:  "If  the  owner  of  property  executes  an  instrument  by 
which  he  declared  himself  a  trustee,  and  had  disclosed  that  instrument  to 
the  cestui  que  trust,  and  afterwards  acted  upon  it,  that  might  perhaps  be 
sufficient,  and  a  court  of  equity  might  not  be  bound  to  inquire  further 
into  an  equitable  title  so  established."  Mr.  Lewin  says  that  this  is 
"expressed  with  unnecessary  caution."  Lewin  on  Trusts,  57.  The  con- 
trary was  held  in  Bowering  v.  King,  37  Ala.  606.  Walker  v.  Crews,  73 
Ala.  412,  417. 

87 


§  97.]  EXPRESS   TRUSTS,   ETC.  [CHAP.  III. 

out  further  action,  and  the  cestui  que  trust  can  enforce  his 
rights.^ 

§  97.  If  the  donor  or  settlor  does  not  propose  to  make 
himself  a  trustee,  the  trust  is  not  perfectly  created.  As 
where  there  is  a  mere  intention  of  creating  a  trust,  or  a  mere 
voluntary  agreement  to  do  so,  and  the  donor  or  settlor  con- 
templates some  further  act  to  be  done  by  him  to  give  it  effect, 
the  trust  is  not  completely  instituted  ;  and  if  it  is  voluntary, 
the  settlor  cannot  be  compelled  to  complete  it.^  So  if  the 
paper  executed  by  the  settlor  is  in  the  nature  of  a  testamen- 
tary disposition  which  requires  to  be  proved  in  a  court  of  pro- 
bate, but  is  so  imperfectly  executed  that  it  cannot  be  proved 
as  a  last  will  and  testament,  no  trust  will  be  created.^ 

1  Ex  parte  Pye,  18  Ves.  149;  Gee  v.  Liddell,  35  Beav.  621.  To  create 
a  trust,  a  man  must  express  an  intention  to  become  a  trustee  ;  and  words 
that  express  a  present  gift  show  an  intention  to  give  property  over  to 
another,  and  not  to  retain  it  in  the  donor's  hands  for  any  purpose,  fidu- 
ciary or  otherwise.  Heartley  v.  Nicholson,  L.  R.  19  Eq.  244;  Richards  v. 
Delbridge,  L.  R.  18  Eq.  11 ;  Ellison  v.  Ellison,  6  Ves.  6.36.  If  one  mode 
of  transfer  is  indicated,  the  court  will  not  give  effect  to  it  by  applying 
another.  Milroy  v.  Lord,  2  De  G.,  F.  &  J.  264;  Warriner  v.  Rogers, 
L.  R.  10  Eq.  340. 

2  Lloyd  V.  Brooks,  34  Md.  139;  Swan  r.  Frick,  34  Md.  141,  Cotteen 
V.  Missing,  1  Mad.  176;  Bayley  v.  Boulcott,  4  Russ.  345;  Dipple  c.  Corles, 
11  Hare,  183;  Jones  v.  Lock,  L.  R.  1  Ch.  25;  Caldwell  r.  Williams,  1 
Bailey,  Eq.  175;  Crompton  v.  Vasser,  19  Ala.  259;  Hayes  i-.  Kershaw,  1 
Sand.  Ch.  258;  Reid  v.  Vanarsdale,  2  Leigh,  560;  Evans  v.  Battle,  19 
Ala.  378;  Pinkard  v  Pinkard,  2  Ala.  649;  Minturn  v.  Seymour,  4  Johns. 
Ch.  498;  Acker  v.  Phcenix,  4  Paige,  305;  Dawson  v.  Dawson,  1  Dev.  Eq. 
93;  Banks  ;;.  May,  3  A.  K.  Marsh.  435;  Bibb  v.  Smith,  1  Dana,  580; 
Darlington  v.  McCoole,  1  Leigh,  36;  Tiernan  v.  Poor,  1  Gill  &  J.  217; 
Forward  v.  Armstead,  12  Ala.  124;  Lawry  u.  McGee,  3  Head,  269;  Lister 
V.  Hodgson,  L.  R.  4  Eq.  30;  Dillinger  v.  Llewelyn,  4  Di  G.,  F.  &  J.  517; 
Gardner  v.  Merritt,  32  Md.  78;  Lloyd  r.  Brooks,  34  Md.  33;  Lanterman 
V.  Abernathy,  47  111.  437 ;  Shaw  v.  Burney,  1  Ired.  Eq.  148 ,  Clarke  v. 
Lott,  11  111.  105:  Read  v.  Robinson,  6  W.  &  S.  338;  Yarborough  v.  West, 
10  Geo.  471 ;  Colman  v.  Sarel,  3  Bro.  Ch.  12;  Antrobus  i-.  Smith,  12  Ves. 
39 ;  Edwards  v.  Jones,  1  M.  &  Cr.  226 ;  Jefferys  v.  Jefferys,  1  Cr.  &  PIhI. 
138;  Dillon  ;;.  Coppin,  4  M.  &  Cr.  647;  Penfold  v.  Mould,  L.  R.  4  Eq. 
562 ;  Disher  v.  Disher,  1  P.  Wms.  204. 

3  Ante,  §§  92-94;  Warriner  r.  Rogers,  L.  R.  16  Eq.  340;  Richardson  v. 
Richardson,  L.  R.  3  Eq.  686 ;  Morgan  v.  Malleson,  L.  R.  10  Eq.  475. 

88 


CHAP,  III.]  VOLUNTARY   SETTLEMENTS.  [§  98. 

§  98.  But  if  the  trust  is  perfectly  created,  so  that  the  donor 
or  settlor  has  nothing  more  to  do,  and  the  person  seeking 
to  enforce  it  has  need  of  no  further  conveyances  from  the 
settlor,  and  nothing  is  required  of  the  court  but  to  give  effect 
to  the  trust  as  an  executed  trust,  it  will  be  carried  into  effect, 
at  the  suit  of  a  party  interested,  although  it  was  without 
consideration,  and  the  possession  of  the  property  was  not 
changed.^     And  this  will  be  true  although  the  person  who 

1  Stone  V.  Hackett,  12  Gray,  227;  Ellison  v.  Ellison,  GVes.  662  ;  Pul- 
vertoft  V.  Pulvertoft,  18  Ves.  99;  Sloan  v.  Cadogan,  Sugd.  Ven.  &  Pur. 
App.  26 ;  Edwards  o.  Jones,  1  M.  &  Cr.  226 ;  Wheatley  v.  Purr,  1  Keen, 
551;  Garrard  v.  Lauderdale,  3  Sim.  1 ;  Colliusoii  v.  Patrick,  2  Keen,  123; 
Dillon  V.  Coppin,  4  M.  &  Cr.  647;  Meek  v.  Kettlewell,  1  Hare,  464; 
Fletcher  v.  Fletcher,  4  Hare,  74 ;  Price  v.  Price,  4  Beav.  598 ;  Bridge  v. 
Bridge,  16  Beav.  315;  Beech  v.  Keep,  18  Beav.  285;  Donaldson  v.  Don- 
aldson, 1  Kay,  711;  Scales  v.  Maude,  6  De  G.,  M.  &  G.  43;  Airey  v. 
Hall,  3  Sm.  &  Gif.  315;  Wright  v.  Miller,  4  Seld.  9;  Andrews  v.  Hobson, 
23  Ala.  219;  Bunn  v.  Winthrop,  1  Johns.  Ch.  329;  Lechmere  v.  Carlisle, 
3  P.  Wms.  222;  Minturn  v.  Seymour,  4  Johns.  Ch.  498;  Dennison  v. 
Goehring,  7  Barr,  175;  Tolar  v.  Tolar,  1  Dev.  Eq.  456;  Dawson  v.  Daw- 
son, 1  Dev.  Eq.  93,  396;  Hardin  v.  Baird,  6  Litt.  310;  Hayes  v.  Kershaw,  1 
Sand  Ch.  261;  Fogg  u.  Middleton,  Riley,  Ch.  193;  Greenfield's  Estate, 
2  Harr.  489;  Kirkpatrick  v.  McDonald,  1  Jones,  387;  Graham  v.  Lam- 
bert, 5  Humph.  595;  Henson  v.  Kinard,  3  Strob.  Eq.  371;  Dupre  v. 
Thompson,  4  Barb.  280;  Cox  v.  Sprigg,  6  Md.  274;  Lane  v.  Ewing,  31 
Mo.  75;  Ownes  v.  Ownes,  23  N.  J.  Eq.  60;  Baker  v.  Evans,  1  Wins.  Eq. 
(N.  C.  )  109;  Massey  v.  Huntington,  118  111.  80;  Richardson  v.  Richard- 
son, L.  R.  3  Eq.  686  ;  Toker  v.  Toker,  3  De  G.,  J.  &  S.  487;  Howard  v. 
Savings  Bank,  40  Vt  597;  Tanners.  Skinner,  11  Bush  (Ky.),  120,  except 
against  creditors  and  bona  fide  purchasers  without  notice ;  Padfield  v.  Pad- 
field,  68  111.  25:  Borum  v.  King,  1  Ala.  S.  C.  is  contra. 

In  Stone  i-.  Hackett,  12  Gray,  227,  the  settlor  had  purchased  stocks  in 
various  corporations  in  the  name  of  H.  P.  K.,  and  took  from  H.  P.  K  a 
declaration  that  she  held  the  stocks  upon  certain  trusts  therein  particu- 
larly specified.  Afterwards  the  settlor  caused  H  P.  K.  to  indorse  and 
sign  upon  the  backs  of  the  certificates  a  transfer  to  the  plaintiff  and  a 
power  of  attorney  to  the  plaintiff  to  complete  the  transfer,  and  took  from 
her  a  declaration  of  trust,  stating  the  purposes  for  which  she  held  the 
stock.  The  settlor  died,  and  a  question  arose  as  to  the  title  to  the  stock. 
Chief-Justice  Bigelow  said:  "The  key  to  the  solution  of  the  question 
raised  in  this  case  is  to  be  found  in  the  equitable  principle  now  well 
established  and  uniformly  acted  on  by  courts  of  chancery,  that  a  voluntary 
gift  or  conveyance  of  property  in  trust,  when  fully  completed  and  exe- 

89 


§  98.]  EXPRESS    TRUSTS,    ETC.  [CHAP.  III. 

is  intended  to  be  benefited  has  no  knowledge  of  the  act  at 
the  time  it  is  done,  provided  he  accepts  and  ratifies  it  when 

cuted,  will  be  regarded  as  valid,  and  its  provisions  enforced  and  carried 
into  effect  against  all  persons  except  creditors  and  bona  Jide  purchasers 
without  notice.  It  is  certainly  true  that  a  court  of  equity  will  lend  no 
assistance  towards  perfecting  a  voluntary  contract  or  agreement  for  the 
creation  of  a  trust,  nor  regard  it  as  binding  so  long  as  it  remains  ex- 
ecutory. But  it  is  equally  true  that  if  such  an  agreement  or  contract  be 
executed  by  a  conveyance  of  property  in  trust,  so  that  nothing  remains  to 
be  done  by  the  grantor  or  donor  to  complete  the  transfer  of  the  title,  the 
relation  of  trustee  and  cestui  que  trust  is  deemed  to  be  established,  and 
the  equitable  rights  and  interests  arising  out  of  the  conveyance,  though 
made  without  consideration,  will  be  enforced  in  chancery.  The  leading 
case  in  which  the  principle  is  declared  and  acted  upon  is  Ellison  r. 
Ellison,  6  Ves.  656,  in  which  Lord  Eldon  decreed  the  enforcement  of  a 
trust  which  in  its  creation  was  wholly  voluntary  and  without  considera- 
tion. This  has  been  followed  by  many  other  cases  in  which  the  same 
principle  was  recognized.  Pulvertoft  v.  Pulvertoft,  18  Ves.  8-1 ;  Ex  parte 
Pye,  Id.  140  ;  Sloan  v.  Cadogan,  Sugd.  Yen.  &  Pur.  (11th  ed  )  1119;  For- 
tescue  V.  Barnett,  3  My.  &  K.  36;  Wheatley  v.  Purr,  1  Keen,  551;  Blakely 
V.  Brady,  2  Dru.  &  Wal.  311;  Browne  v.  Cavendish,  1  Jon.  &  La.  637; 
Kekewich  v.  Manning,  1  De  G.,  M.  &  G.  176.  The  last-named  case  con- 
tains a  full  discussion  of  all  the  authorities,  and  a  clear  and  acciu'ate 
statement  of  the  law  upon  the  subject. 

"The  application  of  the  principle  established  by  these  authorities  is 
entirely  decisive  of  the  rights  and  duties  of  the  parties  to  this  suit.  The 
conveyance  or  transfer  of  the  shares  to  the  plaintiff  in  her  capacity  of 
trustee  was  full  and  complete,  and  vested  in  her  the  legal  title  to  the 
property.  No  further  act  was  to  be  done  by  the  original  owner  of  the 
shares  to  consummate  the  plaintiff's  title,  as  between  the  parties  the  de- 
livery of  the  certificates  of  stock,  with  the  assignments  of  some  of  them 
and  the  power  of  attorney  to  transfer  the  others,  was  equivalent  to  a  com- 
plete executed  transfer  of  the  shares.  Nor  is  it  at  all  material  to  the 
validity  of  the  plaintiff's  title  that  transfers  of  the  shares  had  not  been 
recorded  in  the  books  of  the  different  corporations  and  new  certificates  of 
stock  taken  out  by  her.  That  was  not  necessary  to  the  conveyance  of  the 
legal  title  as  between  the  donor  and  the  plaintiff.  This  is  well  settled  by 
the  authorities  in  this  State.  Quinn  v.  Marblehead  Social  Ins.  Co.,  10 
Mass.  476;  Ellis  v.  Essex  Merrimack  Bridge,  2  Pick.  248;  Sargent  r. 
Franklin  Ins.  Co.,  8  Pick.  96;  Eatnes  y.  Wheeler,  19  Pick.  444.  Such, 
too,  is  the  plain  import  of  the  statute.  .  .  .  Nothing  therefore  was  left  in, 
fieri.  The  transaction  was  a  completely  executed  transfer  of  property, 
and  fully  created  a  trust  which,  according  to  the  principles  already  stated, 
a  court  of  equity  is  bound  to  recognize  and  enforce."     Peufield  v.  Public 

90 


CHAP.  III.]  VOLUNTARY   SETTLEMENTS.  [§  99. 

he  is  notified.^  But  if  there  is  any  fraud,  accident,  or  mistake 
in  the  transaction,  courts  will  not  carry  a  voluntary  trust  into 
execution.2 

§  99  The  trust  must  be  for  a  lawful  purpose  and  perfectly 
created  If  a  will  creates  several  trusts,  some  of  which  are 
legal  and  others  not,  the  lawful  ones  will  be  upheld  if  they 
can  be  separated  from  the  others.^  Whether  the  trust  is 
perfectly  created  or  not,  is  a  question  of  fact  in  each  case ; 
and  the  court,  in  determining  the  fact,  will  give  effect  to  the 
situation  and  relation  of  the  parties,  the  nature  and  situation 
of  the  property,  and  i\\Q  purposes  or  objects  which  the  settlor 
had  in  view  in  making  the  disposition.^     A  vast  number  of 

Adm'r,  2  E  D.  Smith,  505;  Millspaugh  v.  Putnam,  16  Abb.  380;  Hunter 
V.  Hunter,  19  Barb.  631;  Grangiar  w.  Arden,  10  Johns.  293;  Benlow  u. 
Townsend,  1  My.  &  K.  506;  Mendon  v.  Merrill,  2  Edw.  Ch.  333;  Howard 
V.  Windham  County  Savings  Bank,  40  Vt.  597 ;  Sherwood  v.  Andrews, 

2  Allen,  79 ;  Warnner  v.  Rogers,  L.  R.  16  Eq.  311 ;  Blasdel  v.  Locke, 
62  N.  H.  238. 

^  Neilson  v.  Blight,  1  Johns.  Cas.  205 ;  Weston  v.  Barker,  12  Johns. 
276;  Moses  v.  Murgatroyd,  1  Johns.  Ch.  119;  Cumberland  i;.  Codrington, 

3  Johns.  Ch.  261.  And  see  Shepherd  v.  McEvers,  4  Johns.  Ch.  136-,  Hos- 
ford  I.  Merwin,  5  Barb.  51;  Wetzel  v.  Chaplin,  3  Bradf.  386,  Brabrook 
V   Boston  Five  Cents  Savings  Bank,  104  Mass.  231. 

2  Lister  v.  Hodgson,  L.  R.  4  Eq.  30. 

8  Kennedy  v.  Hoy,  105  N.  Y.  134. 

*  See  Brabrook  v.  Savings  Bank,  104  Mass.  228,  where  deposits  in  sav- 
ings banks  are  fully  discussed.  Jones  v.  Lock,  L.  R.  1  Ch.  25.  In  this 
case  a  father  put  a  check  for  £900  into  the  hands  of  his  child,  nine  months 
old,  with  the  strongest  expi-ession  of  an  intent  to  give  the  check  to  the 
child.  He  afterwards  took  the  check  and  locked  it  up,  saying  he  should 
keep  it  for  the  child,  and  died  the  same  day.  A  bill  was  brought  in  be- 
half of  the  child  against  his  father's  representatives  to  enforce  his  interest 
in  the  check  as  a  trust.  Lord  Cran worth  said:  "  No  doubt  a  gift  may  be 
made  by  any  person  sui  juris  and  compos  mentis,  by  conveyance  of  real  estate 
or  by  delivery  of  chattels ;  and  there  is  no  doubt  also  that  by  some  decisions, 
unfortunate  I  must  think  them,  a  parol  declaration  of  a  trust  of  personalty 
may  be  perfectly  valid  even  when  voluntary.  If  I  give  any  chattel,  that 
of  course  passes  by  delivery,  and  if  I  say  expressly,  or  impliedly,  that  I 
constitute  myself  a  trustee  of  personalty,  that  is  a  trust  executed,  and 
capable  of  being  enforced  without  consideration.  I  do  not  think  it  neces- 
sary to  go  into  any  of  the  authorities  cited  before  me.     They  all  turn  upon 

91 


§  99.]  EXPKESS   TRUSTS,   ETC.  [CHAP.  III. 

cases  have  been  decided  involving  the  last  three  propositions. 
There  is  much  seeming  conflict  in  the  decisions,  and  it  would 
be  an  endless,  perhaps  useless,  task  to  attempt  to  reconcile 
them.  The  proposition  laid  down  by  Lord  Cranworth,  that 
it  is  a  question  of  fact  in  each  case  whether  a  perfect  trust  is 
created  or  not,  goes  far  to  reconcile  the  differences.  Some 
judges  give  greater  prominence  to  one  element  of  fact  in  the 
case  than  other  judges,  and  thus  different  judges  might  decide 
the  same  question  upon  the  facts  in  a  different  manner ;  but 
so  long  as  it  is  a  question  of  fact  in  each  case,  the  rule  of  law 
is  the  same,  however  the  fact  may  be  found.  When  a  deed 
fully  declaring  the  trust  is  executed  and  delivered,  and  nothing 
further  remains  to  be  done  by  the  grantor,  the  trust  is  created.^ 
Failing  to  name  the  beneficiary  will  not  be  fatal,  if  the  title  is 
properly  conveyed  and  the  trustee  admits  that  he  holds  for 
the  plaintiff.2     In  New  York,  however,  it  is  held  that  the 

the  question  tvJiether  what  has  been  said  was  a  declaration  of  trust  or  an  imper- 
fect gift.  In  the  latter  the  parties  would  receive  no  aid  from  a  court  of 
equity,  if  they  claimed  as  volunteers ;  but  if  there  has  been  a  declaration 
of  trust,  then  it  will  be  enforced  whether  there  has  been  a  consideration 
or  not.  Therefore  the  question  in  each  case  is  one  of  fact,  has  there  been  a 
gift  or  not,  or  has  there  been  a  declaration  of  trust  or  not  ?  This  case 
turns  on  the  very  short  question  whether  the  father  intended  to  make  a 
declaration  that  he  held  the  property  in  trust  for  the  child,  and  I  cannot 
come  to  any  other  conclusion  than  that  he  did  not."  His  Lordship  then 
comments  upon  the  evidence,  and  says  "that  it  was  all  very  natural,  but 
that  the  father  would  have  been  very  much  surprised  if  he  had  been  told 
that  he  had  parted  with  the  £900,  and  could  no  longer  dispose  of  it;  and 
that  the  child,  by  his  next  friend,  could  have  brought  an  action  of  trover 
for  the  check.''  See  Scales  v.  Maude,  6  De  G.,  M.  &  G.  51 ;  Hackney  v. 
Vrooman,  62  Barb.  650 ;  Brabrook  v.  Boston  Five  Cents  Savings  Bank, 
104  Mass.  228;  Richards  v.  Delbridge,  L.  R.  18  Eq.  11;  Martin  v.  Funk, 
75  N.  Y.  134,  Gerri.sh  v  New  Bedford  Inst,  for  Savings,  128  Mass.  159; 
Taylor  v.  Henry,  48  Md.  550;  Stone  v.  Bishop,  4  Cliff.  593;  Ray  v.  Sim- 
mons, 11  R.  I.  260;  Blaisdell  v.  Locke,  .52  N  H  238;  O'Brien  Pet'r,  11 
R.  I.  419.  The  decisions  are  not  uniform  as  to  the  effect  of  a  deposit  in 
Savings  Bank  and  entry  in  the  books  for  the  benefit  of,  or  in  trust  for  a 
child  or  other  beneficiary;  in  some  cases  it  is  held  sufficient  declaration  of 
a  trust,  and  in  others  something  further  is  required,  as  notice,  or  delivery 
of  the  book. 

1  Massey  v.  Huntington,  118  111.  80. 

2  Sleeper  v.  Iselin,  62  Iowa,  585 ;  Boardman  v.  Willard,  73  Iowa,  20. 

92 


CHAP.  III.]  VOLUNTARY   SETTLEMENTS.  [§  100. 

absence  of  a  defined  beneficiary  capable  of  enforcing  the  trust 
is  in  general  fatal,  and  that  giving  power  to  the  trustee  to 
select  the  beneficiary  is  not  sufficient,  unless  the  persons 
among  whom  the  choice  is  to  be  made  are  so  defined  and 
limited  that  a  court  of  equity  could  in  default  of  selection  by 
the  trustee  enforce  the  trust  by  a  distribution  among  all  the 
beneficiaries.^  In  this  case  the  trust  was  to  have  prayers 
offered  in  a  Roman  church  for  the  repose  of  the  souls  of  the 
grantor,  his  family,  and  all  others  in  purgatory.  A  deed 
saying,  "  The  following  notes  I  leave  in  trust  with  E.  C.  to  be 
divided  among  A.,  B.,  and  C.  at  my  death,"  was  held  to  create 
a  perfect  present  trust.^  A  conveyance  may  be  made  upon 
trusts  to  be  subsequently  declared,  and  when  the  subsequent 
declaration  occurs,  the  trust  is  treated  in  the  same  way  as  if 
declared  at  the  time  of  the  deed.^  The  consent  or  even  knowl- 
edge of  the  cestui  is  not  a  necessary  element  in  the  creation 
of  a  valid  trust.  A  transfer  of  stock,  for  instance,  in  proper 
form  vests  the  title  in  the  transferee  subject  to  his  repudiation 
when  informed  of  the  transaction.* 

§  100.  If  the  donor  or  settlor  propose  to  make  a  stranger 
the  trustee  of  his  property,  and  the  property  is  a  legal  estate, 
capable  of  legal  transfer  and  delivery,  the  trust  is  not  per- 
fectly created,  unless  the  legal  interest  is  actually  transferred 
to  or  vested  in  the  trustee.  It  is  not  enough  that  the  settlor 
executed  a  paper  purporting  to  pass  it,  if  in  fact  the  paper 
does  not  have  that  effect.  The  intention  of  the  settlor  to 
divest  himself  of  the  legal  title  must  be  consummated  and 
executed,  or  the  court  will  not  enforce  the  trust.  As,  for 
instance,  if  a  settlor  execute  a  deed  in  trust  of  scrip,  stock, 
or  shares  in  corporations,  which  scrip,  stock,  or  shares  can  be 
transferred  only  by  assignment  upon  the  backs  of  the  cer- 
tificates, and  upon  the  company's  books,  the  deed,  if  voluntary, 
will  not  create  a  trust  which  the  court  will  execute,  unless 

1  Holland  v.  Alcock,  108  N.  Y.  312. 

2  Egerton  v.  Carr,  94  N.  C.  648. 

8  Ireland  v.  Geraghty,  11  Biss.  (U.  S.)  465. 
*  Standing  v.  Bowring,  31  Ch.  D.  282. 

93 


§  101.]  EXPRESS   TRUSTS,   ETC.  [CHAP.  III. 

the  stocks  are  actually  transferred  in  fact.^  And  so  of  mort- 
gages, mortgage  debts,  and  other  securities.  If  anything 
remains  for  the  donor  to  do  to  vest  the  legal  title  in  the 
donee,  the  court  cannot  execute  the  trust,  if  it  is  voluntary. 
Lord  Eldon  stated  the  principle  thus :  "  I  take  the  distinction 
to  be,  that  if  3"0u  want  the  assistance  of  the  court  to  con- 
stitute a  cestui  que  trust,  and  the  instrument  is  voluntary/, 
you  shall  not  have  the  assistance  for  the  purpose  of  con- 
stituting a  cestui  que  trust,  as  upon  a  covenant  to  transfer 
stock,  &c. ;  but  if  tlie  party  has  completely  transferred  stock, 
&c.,  though  it  is  voluntary,  yet  the  legal  conveyance  being 
effectually  made,  the  equitable  interest  will  be  enforced  by 
this  court.2 

§  101.  But  if  the  subject  of  the  trust  is  a  legal  interest 
that  cannot  be  transferred  or  assigned  at  law,  as  a  bond  or 
any  other  chose  in  action,  what  then  is  the  rule  ?  On  the 
one  hand  it  has  been  argued  that  in  equity  the  universal  rule 
is,  that  a  court  will  not  enforce  a  voluntary  agreement  in 
favor  of  a  volunteer,  and  as  by  the  supposition  the  legal 
interest  remains  in  the  settlor  (who,  therefore,  at  law  retains 
the  full  control  and  benefit  of  it),  a  court  of  equity  will  not, 
in  the  absence  of  a  valuable  or  good  consideration,  deprive 

1  Garrard  v.  Lauderdale,  2  R.  &  M.  451 ;  3  Sim.  1 ;  IMeek  v.  Kettlewell, 

1  Hare,  164;  Dillon  v.  Coppin,  4  M.  &  Cr.  647;  Coningham  v.  Plunkett, 

2  Y.  &  Col.  Ch.  245  ;  Searle  v.  Law,  lo  Sim.  95;  Price  v.  Price,  14  Beav. 
598;  Bridge  v.  Bridge,  16  Beav.  315  ;  Beech  v.  Keep,  18  Beav.  285;  Tot- 
ham  V.  Vernon,  29  Beav.  604;  Dillon  v.  Bone,  3  Gif.  238;  Milroy  v.  Lord, 
8  Jur.  (n.  s.)  806;  4  De  G.,  F.  &  J.  264;  Lonsdale's  Estate,  29  Pa.  St.  407; 
Parnell  v.  Kingston,  3  Sm.  &  Gif.  337;  Kiddill  v.  Farnell,  ib.  428;  Weale 
V.  OUive,  17  Beav.  252 ;  Dening  v.  Ware,  22  Beav.  184 ;  Roberts  v.  Roberts, 
11  Jur.  (n  s.)  992;  Forest  v.  Forest,  34  L.  J.  Ch.  428;  Peckham  v.  Tay- 
lor, 31  Beav.  250;  Jones  v.  Obinchain,  10  Grat.  259;  Henderson  v. 
Henderson,  21  Mo.  379;  Lane  v.  Ewing,  31  Mo.  75;  Gilchrist  v.  Steven- 
son, 9  Barb.  9;  Cressman's  Appeal,  42  Pa.  St.  147;  Doty  u.  Wilson,  5 
Lansing,  7. 

2  Ellison  V.  Ellison,  6  Ves.  662;  Antrobus  v.  Smith,  12  Ves.  39;  Col- 
man  V.  Sarel,  1  Ves.  Jr.  50;  3  Bro.  Ch.  12;  Dening  v.  Ware,  22  Beav.  184; 
Airey  ik  Hall,  3  Sm.  &  Gif.  315;  Kiddill  v.  Farnell,  Id.  428;  Pulvertoft 
V.  Pulvertoft,  18  Ves.  89 ;  Brabrook  v.  Savings  Bank,  104  Mass.  228. 

94 


CHAP.  III.]  VOLUNTARY    SETTLEMENTS.  [§  101. 

him  of  that  interest,  with  which  he  has  not  actually  parted. 
And  this  reasoning  has  been  sustained  by  numerous  cases.^ 
On  the  other  hand,  as  the  settlor  cannot  divest  himself  of 
the  legal  interest,  to  say  that  he  shall  not  constitute  another 
as  trustee  without  passing  the  legal  interest,  would  be  to  debar 
him  from  the  creation  of  a  trust  at  all  in  the  hands  of  another, 
and  that  the  rule,  therefore,  should  be,  that  if  the  settlor  make 
all  the  assignment  of  the  property  in  his  power,  and  perfect 
the  transaction  as  far  as  the  law  permits,  the  court  should 
recognize  the  act  and  support  the  validity  of  the  trust.  And 
this  reasoning  has  also  been  supported  by  many  decided 
cases.2  In  a  late  leading  case.  Lord  Justice  K.  Bruce  made 
a  thorough  examination  of  all  the  authorities,  and  established 
this  proposition :  "  It  is  upon  legal  and  equitable  principles, 
we  apprehend,  clear  that  a  person  sui  juris,  acting  freely  and 
fairly,  and  with  sufficient  knowledge,  ought  to  have,  and  has 
it  in  his  power  to  make  in  a  binding  and  effectual  manner  a 
voluntary  gift  of  any  part  of  his  property,  tvhether  capable  or 
incapable  of  manual  delivery,  tvhether  in  possession  or  rever- 
sionary/, or  howsoever  circumstanced.^^  ^  Mr.  Lewin  says,  "  that 
it  is  conceived  that  this  principle  will,  for  the  future,  prevail,"* 
and  it  has  been  followed  in  the  later  cases.^  But  if  part  of 
the  property  be  capable  of  delivery  and  transfer,  and  part 
of  it  incapable  of  delivery,  and  that  which  might  have  been 

1  Edwards  v.  Jones,  1  My.  &  Cr.  226;  Ward  v.  Audland,  8  Sm.  571; 
C.  P.  Coop.  Cas.  (1846),  146;  8  Beav.  201  ;  Meek  v.  Kettlewell,  1  Hare, 
464 ;  Scales  v.  Maude,  6  De  G.,  M.  &  G.  43 ;  Sewell  v.  Moxsy,  2  8im.  (n.  s.) 
189;  Bridge  v.  Bridge,  16  Beav.  315;  Beech  v.  Keep,  18  Beav.  285. 

2  Fortescue  v.  Barnett,  3  My.  &  K.  36;  Roberts  v.  Lloyd,  2  Beav.  .376; 
Blakely  v.  Brady,  2  Dru.  &  Wal.  311;  Airey  v.  Hall,  3  Sm.  &  Gif.  315; 
Parnell  v.  Kingston,  Id.  337;  Pearson  v.  Amicable  Office,  27  Beav.  229; 
Sloan  V.  Cadogan,  Sugd.  Ven.  &  Pur.  App. 

8  Kekewich  v.  Manning,  1  De  G.,  M.  &  G.  187. 

*  Lewin  on  Trusts,  58. 

^  Wilcocks  V.  Hannyngton,  5  Ir.  Ch.  45;  Voyle  v.  Hughes,  2  Sm.  & 
Gif.  18;  Gilbert  v.  Overton,  33  L.  J.  Ch.  683;  Way's  Settlement,  10  Jur. 
(n.  8.)  1166;  34  L.  J.  Ch.  49;  Lambe  v.  Orton,  1  Dr.  &  Sm.  125;  Donald- 
son V.  Donaldson,  Kay,  711;  Appeal  of  Elliott's  Ex'rs,  50  Pa.  St.  75. 
And  see  Hill  on  Trustees,  140,  141  (4th  Am.  ed.);  Morgan  v.  Malleson, 
L.  R.  10  Eq.  475. 

95 


§  102.]  EXPRESS   TRUSTS,   ETC.  [CHAP.  Ill, 

legally  assigned  and  delivered  is  not  so  assigned  and  delivered, 
no  trust  is  created.^ 

§  102.  It  is  well  established  that  if  the  subject  of  the  trust 
is  an  equitable  interest,  the  cestui  que.  trust  may  create  a  valid 
trust  by  executing  an  assignment  of  his  interest  to  a  new 
trustee,  for  the  equitable  interest  can  be  transferred  from  one 
to  another,  and  as  the  relation  of  trustee  and  cestui  que  trust 
already  exists,  the  original  settlor  need  not  be  called  upon  to 
do  any  act.^  Lord  Justice  K.  Bruce  said  :  "  Suppose  stock  or 
money  to  be  legally  vested  in  A.  as  a  trustee  for  B.  for  life, 
and  subject  to  B.'s  life-interest  for  C.  absolutely,  surely  it 
must  be  competent  for  C,  in  the  lifetime  of  B.,  with  or  with- 
out the  consent  of  A.,  to  make  an  effectual  gift  of  his  interest 
to  D.  by  way  of  pure  bounty,  leaving  the  legal  interest  and 
legal  title  untouched.  If  so,  can  C.  do  this  better  or  more 
effectually  than  by  executing  an  assignment  to  D  ?  "  ^  So  the 
cestui  que  trust  can  assign  voluntarily  his  equitable  interest 
to  a  stranger  in  trust  for  himself,*  Or  by  a  new  declaration 
of  trust  the  cestui  que  trust  can  direct  the  old  trustees  to  hold 
his  interest  thereafter  upon  new  trusts.^  But  it  has  been 
decided  that  a  voluntary  assignment  of  a  mere  expectancy  in 

1  Woodford  v.  Charnley,  28  Beav.  96.     In  Richardson  v.  Richardson, 
L.  R.  3  Eq.  686,  there  was  a  voluntary  assignment  of  all  the  personal 
property,  whatsoever  and  wheresoever,  of  the  assignor.     There  were  pro-  . 
missory  notes  not  indorsed  by  the  assignor,  but  it  was  held  to  be  a  com- 
plete assignment  of  them  in  trust. 

2  Sloan  V.  Cadogan,  Sugd.  Ven.  &  Pur.  App.  This  case  was  questioned 
in  Beatson  v.  Beatson,  12  Sim.  281,  but  it  has  since  been  acted  on  Voyle 
V.  Hughes,  2  Sm.  &  Gif.  18;  Lambe  v.  Orton,  1  Dr.  &  Sm.  125;  Gilbert  v. 
Overton,  2  Hem.  &  M.  110;  Woodford  v.  Charnley,  28  Beav.  99;  Way's 
Settlement,  2  De  G.,  J.  &  Sm.  365,  reversing  4  New  R.  453.  And  see 
Reed  v.  O'Brien,  7  Beav.  32;  Bridge  v.  Bridge,  16  Beav.  315:  Gannon  v 
White,  2  Ir.  Ch.  207;  Donaldson  v.  Donaldson,  1  Kay,  711. 

3  Kekewich  v.  Manning,  1  De  G.,  M.  &  G.  188. 

*  Sloan  V.  Cadogan,  ut  supra;  Cotteen  v.  Missing,  1  Mad.  176;  Collin- 
son  V.  Patrick,  2  Keen,  123;  Wilcocks  v.  Hannyngton,  5  Ir.  Ch.  38;  God- 
sail  V.  Webb,  2  Keen,  99. 

5  Rycroft  v.  Christy,  3  Beav.  238 ;  McFadden  v.  Jenkyns,  1  Hare,  458; 
1  Phill.  153. 
96 


CHAP.  111.]  VOLUNTAEY   SETTLEMENTS.  [§  103. 

an  equitable  interest  did  not  perfectly  create  a  trust  that  the 
court  would  enforce ;  that  any  dealing  with  what  a  person 
only  expects  to  have  must  in  some  sense  be  in  fieri}  And  if 
a  settlor  intend  to  make  a  voluntary  settlement  in  a  particular 
mode,  as  by  conveying  the  legal  title,  and  he  fails  to  convey 
the  title,  the  court  will  not  lend  its  aid  to  give  effect  to  the 
settlement  in  another  and  different  mode,  as  by  converting 
the  attempted  conveyance  into  a  declaration  of  trust,  for  that 
would  be  to  convert  every  imperfect  voluntary  instrument 
into  a  perfect  trust.^ 

§  103.  In  case  of  a  sale  of  real  estate  for  a  valuable  consid- 
eration, nothing  passes  by  the  deed,  although  it  is  signed  and 
sealed,  until  the  purchase-money  is  paid  and  the  deed  de- 
livered to  the  vendee,  or  until  so  much  is  done  that  the  law 
will  construe  the  deed  to  be  for  the  use,  or  under  the  control, 
of  the  vendee  ;  but  if  a  party  execute  a  voluntary  settlement 
and  the  deed  recites  that  it  is  sealed  and  delivered,  it  will  be 
binding  upon  the  settlor  although  he  never  parts  with  it,  but 
keeps  it  in  his  possession  until  his  death.^  Still,  if  there  are 
circumstances  that  show  that  the  settlor  never  intended  the 
deed,  though  executed,  to  operate,  the  court  will  consider 
them  ;  and  if  the  deed  was  never  delivered  it  will  be  one  cir- 
cumstance, and  it  may  be  a  controlling  circumstance,  to  show 
that  the  trust  was  never  perfectly  created,  or  that  it  was 
revocable.^ 

1  Meek  v.  Kettlewell,  1  Hare,  464,  by  Sir  J.  Wigram,  affirmed  by  Lord 
Lyndhurst  in  1  Phill.  342. 

2  Milroy  v.  Lord,  8  Jur.  (n.  s.)  809;  Lister  v.  Hodgson,  L.  R.  4  Eq.  30. 
8  In  re  Way's  Trust,  2  De  G.,  J.  &  Sm.  365;  Fletcher  v.  Fletcher,  4 

Hare,  67;  Hope  v.  Harman,  11  Jur.  1097;  Buna  v.  Winthrop,  1  Johns. 
Ch.  329;  Jones  v.  Obinchain,  10  Grat.  259;  Urann  v.  Costes,  109  Mass. 
581 ;  Sear  v.  Ashwell,  3  Swanst.  411 ;  Barlow  v.  Heneage,  Pr.  Ch.  211 ; 
Clavering  u.  Clavering,  2  Vern.  474 ;  Cecil  v.  Butcher,  2  J.  &  W.  573 ; 
Garnons  v.  Knight,  5  B.  &  C.  671  ;  Exton  v.  Scott,  6  Sim.  31;  Hall  v. 
Palmer,  3  Hare,  .532;  Souverbye  v.  Arden,  1  Johns.  Ch.  240;  Bough  ton 
V.  Boughton,  1  Atk.  625;  Brackenbury  v.  Brackenbury,  2  J.  &  W.  391; 
Roberts  v.  Roberts,  Daniel,  143.  And  see  Cecil  v.  Butcher,  2  J.  &  W.  565. 
*  Uniacke  v.  Giles,  2  Moll.  257 ;  Antrobus  v.  Smith,  12  Ves.  39  ;  Birch 
VOL.  I.  — 7  97 


§  104.]  EXPRESS   TRUSTS,   ETC.  [CHAP.  III. 

§  104.  A  completed  trust  without  reservation  of  power  of 
revocation  can  only  be  revoked  by  consent  of  all  the  cestuis.^ 
If  a  voluntary  trust  for  the  benefit,  wholly  or  partly,  of  some 
person  or  persons  other  than  the  grantor  ^  is  once  perfectly 
created,  and  the  relation  of  trustee  and  cestui  que  trust  is  once 
established,  it  will  be  enforced,  though  the  settlor  has  de- 
stroyed the  deed,^  or  has  attempted  to  revoke  it  by  making  a 
second  voluntary  settlement  of  the  same  property  or  other- 
wise,* or  if  the  estate,  by  some  accident,  afterwards  becomes 

V.  Blagrave,  Amb.  262 ;  Dillon  v.  Coppin,  4  M.  &  Cr.  647 ;  Platmone  v. 
Staple,  Coop.  250;  Naldred  v.  Gilham,  1  P.  Wms.  577;  Cotton  v.  King,  2 
P.  Wms.  358,  674;  Alexander  v.  Brame,  7  De  G.,  M.  &  G.  525;  Otis  v. 
Beckwith,  49  111.  121. 

1  Sargent  v.  Baldwin,  60  Vt.  17. 

2  Light  V.  Scott,  88  111.  239. 

3  Tolar  V.  Tolar,  1  Dev.  Eq.  456  ;  Dawson  v.  Dawson,  Id.  93,  396  ;  In  re 
Way's  Trust,  10  Jur.  837;  2  De  G.,  J.  &  Sm.  365;  Ritter's  App.,  59 
Pa.  St.  9. 

4  Newton  v.  Askew,  11  Beav.  145 ;  Rycroft  v.  Christy,  3  Beav.  238 ; 
Boughton  V.  Boughton,  1  Atk.  625 ;  Brackenbury  v.  Brackenbury,  2  J.  & 
W.  391 ;  Clavering  v.  Clavering,  2  Vern.  473 ;  Roberts  v.  Roberts,  Daniel, 
143;  Cook  V.  Fountain,  3  Swans.  565;  Young  v.  Peachy,  2  Atk.  254; 
Cecil  V.  Butcher,  2  J.  &  W.  565 ;  Souverbye  v.  Arden,  1  Johns.  Ch.  240 ; 
Kekewich  v.  Manning,  1  De  G.,  M.  &  G.  176  ;  In  re  Way's  Trust,  2  De 
G.,  J.  &  S.  365;  Hildreth  v.  Eliot,  8  Pick.  293  ;  Stone  v.  Hackett,  12  Gray, 
227  ;  Falk  v.  Turner,  101  Mass.  494 ;  Bunn  v.  Winthrop,  1  Johns.  Ch.  329; 
Dennisont;.  Goehring,  7  Barr,  175;  Vineyy.  Abbott,  109  Mass.  302;  Sewall 
V.  Roberts,  115  Mass.  272;  Cobb  v.  Knight,  74  Me.  253  ;  Gulick  v.  Gulick, 
39  N.  J.  Eq.  401 ;  Williams  v.  Vreeland,  32  id.  135 ;  McPherson  v.  Rollins, 
107  N.  Y.  316;  Nearpass  v.  Newman,  106  N.  Y.  47  ;  Meigs  v.  Meigs,  22 
Hun  (N.  Y.),  453.  As  where  A.  had  a  policy  of  insurance  issued  on  his 
life  "  in  trust  "  for  his  children,  and  notified  the  ce^tuis  and  paid  the  pre- 
miums for  several  years,  it  was  held  that  he  could  not  revoke  the  interest 
of  his  children,  and  a  second  policy  issued  substantially  as  a  continuation 
of  the  first,  but  made  payable  to  A's  widow,  was  held  for  the  children. 
Garner  v.  Ger.  L.  Ins.  Co.,  110  N.  Y.  266.  It  must  be  observed,  however, 
that  the  absence  of  a  power  to  revoke  a  voluntary  settlement  or  trust  is 
viewed  by  courts  of  equity  as  a  circumstance  of  suspicion,  and  very  slight 
evidence  of  mistake,  misapprehension,  or  misunderstanding  on  the  part  of 
the  settlor  will  be  laid  hold  of  to  set  aside  the  deed.  The  following 
opinion  by  the  Chancellor  (Runyon)  in  a  late  case  in  New  Jersey,  Garn- 
sey  V.  Mundy,  24  N.  J.  Eq.  243,  reprinted  in  13  Am.  Law  Reg.  (n.  s.)  345, 
with  a  learned  note  by  Mr.  Bispham,  gives  a  very  clear  view  of  the  law 

98 


CHAP.  III.]  VOLUNTARY   SETTLEMENT.  [§  104. 

revested  in  the  settlor.^  In  all  these  cases  the  first  perfectly 
created  trust  will  be  upheld,  with  all  its  consequences,  and 

applicable  to  voluntary  settlements  without  a  power  of  revocation  made 
under  circumstances  which  may  lead  to  the  conclusion  that  the  settlor  did 
not  intend  to  put  the  property  entirely  beyond  his  control,  or  that  he  acted 
unadvisedly  or  improvidently :  — 

"On  the  4th  of  July,  1861,  the  complainant,  Sarah  M.  Garnsey,  who 
was  then  a  single  woman  (her  maiden  name  being  Sarah  M.  Muudy),  and 
of  the  age  of  about  twenty-one  years,  was  seized  in  her  own  right,  in  fee, 
in  possession,  through  inheritance  from  her  father,  James  Mundy,  de- 
ceased, of  a  parcel  of  unimproved  farming  land  of  about  seven  acres  in 
Middlesex  County  in  this  State,  and  was  also  the  owner  of  an  undivided 
third  of  the  remainder,  in  fee,  of  two  other  lots  there,  —  one  a  wood-lot 
of  about  two  acres,  and  the  other  the  house-lot,  containing  about  nine  and 
a  half  acres,  which  had  been  set  off  to  her  mother,  Elizabeth  Mundy,  in 
dower.  She  had  no  other  property,  real  or  personal.  By  a  deed  of  that 
date  she  conveyed  in  fee  to  her  mother,  for  the  expressed  consideration  of 
natural  love  and  affection  to  the  grantor's  daughter,  Elmina  May,  and  of 
fifty  cents  to  her  paid  by  her  mother,  the  whole  of  said  property  on  the 
following  trust:  '  That  the  said  Elizabeth  Mundy  shall  and  will  hold,  use, 
occupy,  and  rent  the  same,  and  receive  the  rents,  issues,  and  profits 
thereof  to  and  for  the  maintenance  of  said  Elmina  May  Mundy  until  she 
shall  arrive  at  the  age  of  twenty-one  years,  or  in  case  of  her  death,  the 
said  Elizabeth  Mundy,  her  heirs  or  assigns,  shall  pay  the  rents  or  profits 
arising  as  above  to  the  said  Sarah  M.  jNIuudy,  and  in  further  trust  to 
convey  the  land  and  premises  with  the  appurtenances  hereinbefore  men- 
tioned, in  fee-simple,  to  the  said  Elmina  May  Mundy,  or  in  equal  shares 
to  her  and  any  other  children  of  said  Sarah  M.  Mundy  (should  there  be 
any  other),  when  the  youngest  of  said  children  shall  have  attained  the 
age  of  twenty-one  years ;  and  in  the  event  that  no  issue  of  the  said  Sarah 
M.  Mundy  shall  survive  to  inherit  the  same,  that  the  estate  herein  named 
shall  be  conveyed  according  to  the  direction  of  the  executor  of  the  will  of 
the  said  Sarah  M.  Mundy  heretofore  made.' 

"  In  1864  Sarah  M.  IMandy  was  married  to  Silas  Garnsey.  The  bill  is 
filed  by  her  and  her  husband  against  her  two  children  and  her  mother, 
the  trustee,  to  set  aside  the  deed.    The  property  at  the  time  of  making  the 


1  Ellison  V.  Ellison,  6  Ves.  656;  Smith  v.  Lyne,  2  Y.  &  Col.  345;  Pat- 
erson  v.  INIurphy,  11  Hare,  88;  Gilchrist  i'.  Stevenson,  9  Barb.  9;  Uzzle  n. 
Wood,  1  Jones,  Eq.  226;  Browne  v.  Cavendish,  1  J.  &  L.  637.  See  also 
Aylsworth  v.  Whitcomb,  13  R.  I.  298,  where  it  is  said,  if  deliberate  in- 
tent to  make  it  irrevocable  does  not  appear,  the  absence  of  power  of 
revocation  will  he  prima  facie  evidence  of  mistake.  Estes  v.  Tillinghast, 
4  R.  1.  276 ;  Russell's  App.  75  Pa.  St.  269. 

99 


§  104.]  EXPRESS   TRUSTS,   ETC.  [CHAP.  III. 

the  settlor  will  be  declared  to  be  a  trustee.^      A  trust  once 
created  and  accepted  without  reservation  of  power  can  only 

conveyance  in  question  was  and  still  is  of  but  little  value  as  farming  land. 
The  buildings  upon  the  house-lot,  which  alone  was  improved,  were  old 
and  dilapidated  and  have  gone  to  decay,  and  even  the  fences  on  the  prem- 
ises are  down.  The  trustee,  who  is  a  woman  of  advanced  age,  was  and  is 
wholly  without  means,  except  her  dower.  The  deed  is  voluntary.  It  was 
made  at  the  suggestion  and  on  the  advice  of  the  grantor's  mother,  and 
of  her  uncle,  Dr.  Jacob  Martin,  her  mother's  brother.  The  grantor 
neither  proposed  nor  suggested  it.  Indeed,  it  appears  she  knew  nothing 
of  it  until  it  was  presented  to  her  for  her  signature,  and  she  was  urged  by 
her  mother  and  her  uncle  to  execute  it,  '  for  her  good.'  Their  motive, 
they  say,  was  to  save  the  property  for  her,  to  prevent  her  from  improvi- 
dently  disposing  of  it.  No  professional  advice  whatever  was  taken.  The 
deed  was  drawn  by  a  son  of  Dr.  Martin,  at  the  latter's  direction,  and  its 
execution  was  witnessed  by  Dr.  Martin,  who,  being  a  commissioner  of 
deeds,  took  the  grantor's  acknowledgment.  The  grantor  had  no  advice 
whatever,  except  that  which  her  mother  and  uncle  gave  her.  Not  only 
was  she  not  consulted  in  regard  to  the  matter  in  any  way,  but  it  was  clear 
that  she  did  not  understand  the  provisions  of  the  deed,  nor  their  effect. 
She  did  not  suppose  that  the  effect  of  the  conveyance  would  be  to  place 
the  property  beyond  her  reach  and  control.  Nay,  her  mother  and  uncle 
both  supposed  that  the  trust  was  revocable,  and  that  the  grantor  under  it 
retained  full  power  to  sell  the  property,  with  the  trustee's  consent.  The 
conveyance  not  only  deprived  the  grantor  of  all  her  property,  without 
reserving  a  power  of  revocation  to  enable  her  to  meet  the  exigencies  of 
life,  but  the  arrangement  which  it  made  was  in  other  respects  injudicious, 
disadvantageous,  and  improvident.  The  motives  and  intentions  of  the 
mother  and  uncle  were  most  praiseworthy.  Their  design  manifestly  was 
simply  to  put  the  property  in  such  a  position  that  the  grantor  could  not 
dispose  of  it  without  her  mother's  consent  and  concurrence.  They  in 
good  faith  urged  her  to  make  the  deed.  She  and  they  were  alike  under 
an  erroneous  impression  as  to  the  effect  of  it.  From  the  operation  of 
such  a  conveyance,  made  under  such  circumstances,  equify  will  relieve 
the  complainants.  The  rigidity  of  the  ancient  doctrine,  that  a  voluntary 
settlement,  not  obtained  by  fraud,  is  binding  on  the  settlor,  and  will  not 
be  set  aside  in  equity,  although  the  settlor  has  not  reserved  a  power  of 
revocation  (Villers  v.  Beaumont,  1  Vern.  100 ,  Petre  v.  Espinasse,  2  M.  &  K. 
49(j ;  Bill  V.  Cureton,  2  M.  &  K.  503) ,  has  been  relaxed  by  modern  decisions. 
In  the  case  first  cited,  Villers  v.  Beaumont,  decided  in  1682.  the  Lord  Chan- 
cellor said:  'If  a  man  will  improvidently  bind  himself  up  by  a  voluntary 


1  Ellison  V.  Ellison,  6  Ves.  656 :  Smith  v.  Lyne,  2  Y.  &  Col.  345 ;  Pat- 
erson  v.  Murphy,  11  Hare,  88;  Gilchrist  i'.  Stevenson,  9  Barb.  9. 
100 


CHAP.  III.]  VOLUNTARY    SETTLEMENTS.  [§  104. 

be  revoked  by  the  full  consent  of  all  parties  in  interest ;  ^  if 
any  of  the  parties  are  not  in  being,  or  are  not  sui  juris,  it  can- 
deed,  and  not  reserve  a  liberty  to  himself  by  a  power  of  revocation,  this 
court  will  not  loose  the  fetters  he  hath  put  on  himself,  but  he  must  lie  down 
under  his  own  folly.'  Recent  cases,  however,  have  narrowed  the  doctrine, 
and  have  held,  not  only  that  the  absence  of  a  power  of  revocation  throws 
on  the  person  seeking  to  uphold  the  settlement  the  burden  of  proving  that 
such  a  power  was  intentionally  excluded  by  the  settlor,  and  that,  in  the 
absence  of  such  proof,  the  settlement  may  be  set  aside,  but  that  equity 
will  set  aside  the  settlement  on  the  application  of  the  settlor,  when  it 
appears  that  he  did  not  intend  to  make  it  irrevocable,  or  when  the  settle- 
ment would  be  unreasonable  or  improvident  for  the  lack  of  a  provision  for 
revocation.  In  Everitt  v.  Everitt  (1870),  L.  R.  10  Eq.  405,  —  a  case 
almost  precisely  similar  in  its  facts  to  that  under  consideration,  —  a  vol- 
untary settlement  was  set  aside  on  the  application  of  the  donor.  The 
court  said:  'It  is  very  difficult  indeed  for  any  voluntary  settlement,  made 
by  a  young  lady  so  soon  after  she  attained  twenty-one,  to  stand,  if  she 
afterwards  changes  her  mind  and  wishes  to  get  rid  of  the  fetters  which 
she  has  been  advised  to  put  upon  herself. ' 

"  In  Wollaston  v.  Tribe  (1869),  L.  R.  9  Eq.  44,  a  voluntary  gift  which 
was  not  subject  to  a  power  of  revocation,  but  was  meant  to  be  irrevocable, 
was  held  to  be  invalid,  and  was  set  aside  on  the  donor's  application.  In 
pronouncing  the  decree,  the  court  said:  '  Of  course  a  voluntary  gift  is 
I^erfectly  good  if  the  person  who  makes  it  knows  what  it  is,  and  intended 
to  carry  it  into  execution.'  In  Coutts  v.  Acworth,  L.  R.  8  Eq.  558,  it 
was  held  that  '  Where  the  circumstances  are  such  that  the  donor  in  a 
voluntary  settlement  or  gift  ought  to  be  advised  to  retain  a  power  of 
revocation,  it  is  the  duty  of  the  solicitor  to  insist  on  the  insertion  of  such 
power,  and  the  want  of  it  will  in  general  be  fatal  to  the  deed.'  In  Pri- 
deaux  v.  Lonsdale  (1863),  1  De  G.,  J.  &  S.  433,  a  voluntary  settlement, 
which  the  settlor  was  advised  to  execute  by  persons  under  whose  influence, 
as  regarded  money  matters,  she  was,  and  which  subjected  her  property  to 
trusts  and  contained  provisions  which  the  court  thought  it  was  impossible 
to  suppose  she  understood,  and  against  which  she  ought  to  have  been  ad- 
vised and  cautioned,  was  set  aside.  In  Hall  v.  Hall,  L.  R.  14  Eq.  365,  it 
■was  held  that  a  voluntary  settlement  should  contain  a  power  of  revoca- 
tion; and  if  it  does  not,  the  parties  who  rely  on  it  must  prove  that  the 
settlor  was  properly  advised  when  he  executed  it,  and  that  he  thoroughly 
understood  the  effect  of  omitting  the  power,  and  that  he  intended  it  to  be 
excluded  from  the  settlement,  and  further,  if  that  is  not  established,  and 
the  court  sees  from  the  surrounding  circumstances  that  the  settlor  believed 
the  instrument  to  be  revocable,  it  will,  even  after  the  lapse  of  twenty 


Hellman  v.  Mc Williams,  70  Cal.  449. 

101 


§  104.]  EXPRESS   TRUSTS,   ETC.  [CHAP.  III. 

not  be  revoked  at  all.^     It  is  perfectly  clear  that  where  the  set- 
tlor did  not  misapprehend  the  contents  of  the  deed  and  there 

years  and  the  death  of  the  settlor,  interfere  and  give  relief  against  it. 
The  decree  in  that  case  was  reversed.  (1873,  L.  R.  8  Chan.  Ap.  430.) 
In  his  opinion,  Selborne,  L.  C,  said:  'The  absence  of  a  power  of  i-evo- 
cation  in  a  voluntary  deed,  not  impeached  on  the  ground  of  any  undue 
influence,  is  of  course  material  where  it  appears  that  the  settlor  did  not 
intend  to  make  an  irrevocable  settlement,  or  where  the  settlement  itself  is 
of  such  a  nature,  or  was  made  under  such  circumstances  as  to  be  un- 
reasonable and  improvident,  unless  guarded  by  a  power  of  revocation.' 
Forshaw  v.  Welsby,  30  Beav.  2-13,  was  a  case  where  a  voluntary  settle- 
ment was  made  by  one,  m  extremis,  on  his  family.  It  contained  no  power 
of  revocation  in  case  of  the  settlor's  recovery.  On  his  recovery  it  was  set 
aside  on  his  application,  on  the  ground  that  it  was  not  executed  with  the 
intention  that  it  should  be  operative  in  case  of  his  recovery  from  his  ill- 
ness. See  also  Huguenin  v.  Baseley,  Lead.  Cas.  in  Eq.  406;  Cook  v. 
Lamotte,  15  Beav.  241 ;  Sharp  v.  Leach,  31  Beav.  491 ;  Phillipson  v.  Kerry, 
32  Beav.  628.  It  is  not  necessary,  however,  to  rest  a  decision  of  this  case 
adverse  to  the  deed  on  so  narrow  a  foundation  as  the  mere  absence  of  a 
power  of  revocation.  The  circumstances  under  which  a  voluntary  deed 
was  executed  may  be  shown,  with  a  view  of  impeaching  its  validity,  and 
if  it  appears  that  it  was  fraudulent  or  improperly  obtained,  equity  will 
decree  that  it  be  given  up  and  cancelled.  In  the  present  case  there  is  no 
room  for  doubt  that  the  grantor  was  induced,  by  those  in  whom  she  very 
justly  placed  confidence,  and  by  whose  better  judgment  she  was  willing 
to  be  guided,  to  execute  a  voluntary  deed  whose  effect  she  and  they  not 
only  did  not  understand,  but,  on  the  other  hand,  misapprehended;  and 
which,  so  far  from  being  according  to  their  intentions,  was  in  two  very 
important  respects,  at  least,  admittedly  precisely  the  reverse.  It  was  ir- 
revocable; but  they  all  supposed  it  was  revocable,  and  intended  that  it 
should  be  so.  It  deprived  the  grantor  of  the  power  of  sale ;  but  they  all 
supposed  that  she  would  have  that  power,  and  intended  that  she  should 
have  it,  clogged  only  by  the  necessity  of  obtaining  her  mother's  consent 
and  concurrence  in  any  bargain  or  conveyance  she  might  make.  The 
deed  contains  no  power  of  sale  whatever.  The  testimony  of  all  the  parties 
to  the  transaction  —  the  grantor,  her  mother  and  uncle  —  has  been  taken 
in  the  cause.  It  satisfies  me  that  the  deed  was  not  '  the  pure,  voluntary, 
well-understood  act  of  the  grantor's  mind '  (Lord  Eldon  in  Huguenin  v. 
Baseley),  but  was  unadvised  and  improvident,  and  contrary  to  the  in- 
tention of  all  of  them.  The  fact  that  the  infant  children  of  the  grantor 
are  beneficiaries  under  the  deed  will  not  prevent  the  court  from  setting  it 
aside.    Huguenin  v.  Baseley ;  Everitt  v.  Everitt,  uhi  sup.    There  will  be  a 


1  Shaw  V.  Delaware,  &c.  R.  R.  Co.,  3  Stockt.  229. 
102 


CHAP.  III.]  VOLUNTARY   SETTLEMENTS.  [§  104. 

■was  no  fraud  or  undue  influence,  and  no  power  of  revocation 
was  reserved,  the  settlor  is  bound,  though  some  contingency  was 
forgotten  and  unprovided  for.^  A  policy  of  insurance  on  the 
life  of  A.,  payable  to  his  mother,  who  furnished  a  portion  of 
the  money,  is  a  trust  which  cannot  be  revoked  by  a  surrender 
of  the  policy,  without  the  mother's  consent,  and  the  issue  of  a 
new  one  in  favor  of  A's  wife.^  The  effect  of  the  delivery  of 
tlie  deed  of  trust  cannot  be  impaired  by  any  mental  reserva- 
tion of  the  grantor,  or  oral  condition  repugnant  to  the  terms 
of  the  deed.3  But  where  the  trust  deed  was  never  delivered  to 
the  trustee  except  for  safe  keeping,  and  on  the  understanding 
that  it  should  be  returned  for  cancellation  on  demand,  and 
with  the  consent  of  the  cestui  it  was  so  returned  and  can- 
celled, no  trust  arose.*  If  the  voluntary  settlement  be  subject 
to  a  life  estate  in  the  settlor,  and  also  subject  to  such  debts  as 
he  contracts  during  his  life,  he  can  defeat  the  trust  by  con- 
tracting debts  to  the  full  amount  of  the  estate,^  even  if  the 
debts  are  contracted  by  giving  voluntary  bonds  for  the  pur- 
pose of  defeating  the  settlement.^  If,  however,  the  settlor  has 
not  reserved  the  right  to  revoke  the  settlement,  or  to  charge 
it  with  his  debts,  he  can  do  nothing  to  impair  the  rights  of 
those  in  remainder.''  Although  the  power  of  revocation  is 
reserved,  the  trust  is  as  good  and  effectual  as  if  irrevocable, 
until  the    power  is  exercised.^     Where  the  trust  does  not 

decree  that  the  deed  be  delivered  up  to  be  cancelled."  See  also  Rhodes 
V.  Bates,  L.  R.  1  Ch.  252 ;  Leach  v.  Farr,  13  Am.  Law  Reg.  350  (n.  s.)  ; 
Villers  v.  Beaumont,  1  Vera.  99;  Bridgman  v.  Greene,  2  Ves.  627;  Petre 
V.  Espinasse,  2  M.  &  K.  496;  Bill  v.  Cureton,  Id.  511;  Hastings  v.  Ord, 
11  Sim.  205;  Coutts  v.  Acworth,  L.  R.  8  Eq.  538;  Phillips  v.  Mullings, 
L.  R.  7  Ch.  244 ;  Hall  v.  Hall,  L.  R.  8  Ch.  430 ;  Toker  v.  Toker,  3  De  G., 
J.  &  S.  487;  Evans  v.  Russell,  31  Leg.  Lit.  125. 

1  Keyes  v.  Carleton,  141  Mass.  45,  .50. 

2  Pingrey  v.  Nat'l  Ins.  Co.,  144  Mass.  374,  382. 
8  Wallace  v.  Berdell,  97  N.  Y.  13. 

*  Burroughs  v.  De  Couts,  70  Cal.  361. 
6  Markwell  v.  Markwell,  34  Beav.  12. 
6  Ibid. 

^  Aubuchon  v.  Bender,  44  Mo.  560;  Dean  v.  Adler,  30  Md.  147;  Hall 
V.  Hall,  L.  R.  14  Eq.  3f  5;  Beal  v.  Warren,  2  Gray,  447. 
8  Van  Cott  V.  Prentice,  104  X.  Y.  45. 

103 


§  106.]  EXPRESS   TRUSTS,   ETC.  [CUAP.  III. 

break  the  natural  course  of  descent  of  the  property,  and  is  not 
needed  for  the  protection  of  the  life  cestui,  who  is  the  grantor, 
equity  will,  on  application  of  the  cestui,  terminate  the  trust 
and  decree  a  conveyance.^  In  this  case  the  trust  was  made 
by  a  woman  before  marriage  for  herself  for  life,  remainder 
to  her  appointees  by  will,  or  her  heirs-at-law,  if  she  died 
intestate.  After  marriage  she  applied  for  a  conveyance  and 
discharge  of  the  trust,  and  as  the  natural  descent  was  not 
broken,  and  the  laws  of  the  State  sufficiently  protected  mar- 
ried women,  the  request  was  granted. 

§  105.  Nor  is  notice  to  the  cestui  que  trustor  to  the  trustee, 
and  acceptance  by  him,  essential  to  the  validity  of  a  voluntary 
trust  as  against  the  settlor,  if  it  is  otherwise  perfectly  created.^ 
But  the  absence  of  notice  may  become  a  fact  of  more  or  less 
importance  in  determining  whether  the  trust  is  perfectly  cre- 
ated or  not.^  As  between  purchasers  for  value,  notice  or  no 
notice  may  have  important  effects ;  but  a  voluntary  trust,  as 
between  the  settlor,  the  trustee,  and  the  cestui  que  trust,  can 
be  perfectly  created  without  it. 

§  106.  Under  the  statute  of  uses,  uses  could  be  raised 
either  upon  a  valuable  or  pecuniary  consideration,  or  upon 
what  was  called  a  good  or  meritorious  consideration  ;  that 
is,  a  consideration  arising  out  of  blood,  marriage,  or  family 
affection,  and  the  moral  obligation  that  every  one  is  under 
to  provide  for  his  family  or  relations.  Thus,  a  covenant  to 
stand  seized  to  the  uses  of  a  stranger,  founded  upon  a  valu- 

1  Nightingale  v.  Nightingale,  13  R.  I.  116. 

2  Tate  V.  Leithhead,  Kay,  658;  Donaldson  v.  Donaldson,  Kay,  711; 
Roberts  v.  Lloyd,  2  Beav.  376;  Burn  v.  Carvalho,  4  M.  &  Cr.  690;  Slo- 
per  V.  Cottrell,  6  El.  &  Bl.  504;  Gilbert  v.  Overton,  2  Hem.  &  Mill.  110; 
Kekewich  v.  Manning,  1  De  G.,  M.  &  G.  176;  Tierney  i'.  Wood,  19  Beav. 
330;  Lamb  v.  Orton,  1  Dr.  &  Sm.  125;  Meux  v.  Bell,  1  Hare,  73;  Otis  v. 
Beckwith,  49  111.  121. 

3  Beatson  v.  Beatson,  12  Sim.  281;  Meek  v.  Kettlewell,  1  Hare,  476; 
1  Phill.  342;  Rycroft  v.  Christy,  3  Beav.  238;  Godsall  v.  Webb,  2  Keen, 
99;  McFadden  v.  Jenkyns,  1  Phill.  153;  Bridge  v.  Bridge,  16  Beav.  315; 
Cecil  V.  Butcher,  2  J.  &  W.  573. 

104 


CHAP.  III.]  VOLUNTARY    SETTLEMENTS.  [§  107. 

able  consideration,  operated  under  the  statute  as  a  deed  of 
bargain  and  sale  to  be  enrolled,  and  conveyed  the  laud  to  the 
stranger.  But  a  covenant  in  consideration  of  blood  or  mar- 
riage, to  stand  seized  to  the  use  of  a  wife  or  child  or  other 
relation,  created  a  use  only  in  the  cestui  que  use,  and  the  deed 
need  not  be  enrolled.  In  all  cases  the  consideration  of  this 
conveyance  ivas  the  foundation  of  if.  Therefore,  a  covenant 
to  stand  seized  to  the  use  of  a  stranger  in  consideration  of 
love  or  affection  for  him  was  inoperative  for  want  of  a  con- 
sideration ;  and  a  covenant  in  consideration  of  blood  or  mar- 
riage, to  stand  seized  to  the  use  of  a  relative  and  a  stranger, 
vested  the  whole  use  in  the  relative,  and  was  inoperative  as 
to  the  stranger.  From  this  brief  statement  can  be  seen  the 
effect  and  meaning  of  what  was  called  a  good  or  meritorious 
consideration  under  the  statute  of  uses.^ 

§  107.  In  analogy  to  this  doctrine,  under  the  statute  of  uses 
it  has  been  urged  that  a  voluntary  post-nuptial  settlement  in 
favor  of  a  wife  or  child,  executory  in  all  its  aspects,  would  be 
enforced  in  favor  of  such  wife  or  child  on  the  ground  of  a 
good  or  meritorious  consideration  for  such  settlement.^  And 
in  Ellis  V.  Nimmo,  Sugden,  Lord  Chancellor  of  Ireland,  after 
a  most  exhaustive  examination  of  the  authorities,  decided 
that  the  meritorious  consideration  of  providing  for  a  child 
was  sufficient  to  lead  a  court  of  equity  to  enforce  an  execu- 
tory contract  against  the  settlor.^  This  case  met  with  con- 
siderable criticism,  and  several  cases  were  decided,  more  or 
less  in  opposition  to  it.^  In  Moore  v.  Crofton,  he  allowed  it 
to  be  overruled,  declaring,  however,  at  the  same  time,  that 

1  Sand.  Uses,  96-101 ;  2  Black.  Com.  338. 

2  Bonham  v.  Newcomb,  2  Vent.  365;  Leech  v.  Leech,  1  Ch.  Cas.  249; 
Fothergill  v.  Fothergill,  Freem.  256 ;  Sear  v.  Ashwell,  and  Gordon  v. 
Gordon,  3  Swanst.  411 ;  Watts  v.  Bullas,  1  P.  Wms.  60;  Bolton  v.  Bolton, 
3  Sev.  414;  Goring  v.  Nash.  3  Atk  186;  Darley  v.  Darley,  Id.  399;  Hale 
V.  Lamb,  2  Eden,  292;  Evelyn  v.  Templar,  2  Bro.  Ch.  148;  Colman  r.  Sarel, 
1  Ves.  Jr.  50;  3  Bro.  Ch.  12;  Antrobus  v.  Smith,  12  Ves.  39;  Rodgers  v. 
Marshall,  17  Ves.  294;  Ellison  v.  Ellison,  6  Ves.  656. 

8  Ellis  V.  Nimmo,  Lloyd  &  Goold,  333. 

*  Holloway  v.  Headington,  8  Sim.  324;  Dillon  v.  Coppin,  4  My.  &  Cr. 
646;  Jefferys  v.  Jefferys,  1  Cr.  &  Ph.  138. 

105 


§  108.]  EXPRESS    TRUSTS,    ETC.  [CHAP.  III. 

he  still  thought  it  decided  upon  sound  principles  of  equity,^ 
so  that  now  it  may  be  considered  as  settled  in  England,  that 
an  executory  agreement  founded  on  a  meritorious  considera- 
tion only  will  not  be  executed  against  the  settlor  himself.^ 

§  108.  As  to  other  parties  claiming  under  the  settlor,  if  he 
had  sold  the  estate,  or  become  indebted,  the  equity  of  a  wife 
or  child  claiming  as  cestui  que  trust,  on  the  ground  of  a  meri- 
torious consideration,  would  not  be  enforced  against  a  pur- 
chaser or  creditors.^  But  if  the  settlor  subsequently  made  a 
voluntary  settlement,  or  died  without  disposing  of  the  estate 
by  some  act  mter  vivos,  there  were  authorities  that  the  volun- 
tary cestui  que  trust  could  enforce  his  equity  as  against  other 
volunteers  under  another  settlement,*  or  against  devisees  or 
legatees,^  or  against  the  heir-at-law  or  next  of  kin.^  There 
was,  however,  this  condition,  that  tlie  persons  against  whom 
the  settlement  was  sought  to  be  enforced  could  not  also 
plead  a  meritorious  consideration ;  for  if  they  also  were  chil- 
dren of  the  settlor,  the  considerations  would  be  equal.  In 
such  cases  the  court  referred  it  to  a  master  to  report  whether 
they  had  an  adequate  provision  independent  of  the  estate.' 
But  at  the  present  day  in  England  it  would  appear  that 
even  as  against  volunteers  claiming  under  the  settlor,  with 
or  without  an  adequate  provision,  a  voluntary  executory 
agreement,  whether  under  seal  or  not,  cannot  be  enforced  on 
the  mere  ground  of  a  meritorious  consideration.® 

1  Moore  r.  Crofton,  3  Jon.  &  La.  442. 

2  Antrobus  v.  Smith,  12  Ves  46;  Holloway  v.  Headington,  8  Sim.  325; 
Walrond  v.  Walrond,  1  Johns.  25.  And  see  Phillips  v.  Fiye,  14  Allen,  36; 
White  V.  White,  52  N.  Y.  368. 

3  Bolton  V.  Bolton,  3  Swanst.  414,  note;  Goring  v.  Nash,  3  Atk.  186; 
Finch  V.  Winchelsea,  1  P.  Wms.  277;  Gerrard  v.  Lauderdale,  2  R.  &  M. 
154,  453.  But  see  Mackay  v.  Douglass,  L.  R.  14  Eq.  106;  Perry  Herrick 
V.  Attwood,  2  De  G.  &  J.  39;  Beal  v.  Warren,  2  Gray,  447. 

4  Bolton  V.  Bolton,  3  Swanst.  414. 
6  Ibid. 

6  Watts  I'.  BuUas,  1  P.  Wms.  60;  Goring  r.  Nash,  3  Atk.  186;  Rodgers 
V.  Marshall,  17  Ves.  294. 

T  Goring  v.  Nash,  3  Atk.  186;  Rodgers  v.  Marshall,  17  Yes.  294. 
8  Price  V.  Price,  14  Beav.  598  ;  Colman  v.  Sarel,  1  Ves.  Jr.  50  ;  JefEerys 
106 


CHAP.  III.]  VOLUNTARY    SETTLEMENTS.  [§  109. 

§  109.  The  tendency  in  the  United  States  is  to  sustain  and 
carry  into  effect  an  executory  trust  in  favor  of  a  wife  or  child 

V.  Jefferys,  1  Cr.  &  Ph.  1.38;  Antrobus  v.  Smith,  12  Ves.  39;  Evelyn  v. 
Templar,  2  Bro.  Ch.  148;  Holloway  v.  Headington,  8  Sra.  834;  Joyce  v. 
Hutton,  11  Jr.  Ch.  123;  Moore  v.  Crofton,  3  Jon.  &  La.  442. 

Mr.  Lewin  (p.  95  of  his  3d  ed.)  has  discussed  this  whole  matter  with  a 
fulness  that  leaves  little  to  be  said.  He  says:  "  It  has  also  been  supposed 
that  where  the  trust  is  imperfectly  created,  the  court,  without  proof  of 
valuable  consideration,  will  act  upon  a  meritorious  consideration,  as  the 
payment  of  debts  or  provision  for  wife  or  child.  The  covenant  to  stand 
seized  to  uses,  and  the  jurisdiction  of  the  court  in  supplying  surrenders 
and  aiding  the  defective  execution  of  powers,  have  generally  been  referred 
to  as  establishing,  or  at  least  countenancing,  this  doctrine. 

"  As  regards  the  covenant  to  stand  seized  to  uses,  it  is  evident  that 
mere  meritorious  consideration  was  not  a  sufficient  ground  to  attract  the 
jurisdiction  of  the  court ;  for  no  use  would  have  arisen  in  favor  of  a  wife 
or  child  unless  there  had  been  a  covenant.  '  There  are  several  ways  in 
the  law,'  said  Lord  Justice  Holt,  '  for  declaring  uses,  whether  upon  trans- 
mutation of  the  possession  or  not.  If  a  use  be  declared  upon  a  transmu- 
tation of  the  possession,  as  in  a  fine  of  feoffment,  it  is  sufficient  for  the 
party  on  the  transmutation  to  declare  that  the  use  shall  be  to  such  a 
party  of  such  an  estate  ;  but  if  the  use  arise  without  transmutation  of  the 
possession,  the  use  then  does  not  arise  by  virtue  of  any  declaration  or 
appointment,  but  there  must  be  some  precedent  obligation  to  oblige  the 
party  declaring  the  use,  which  must  be  founded  on  some  considei-ation ; 
for  a  use,  having  its  foundation  generally  on  grounds  of  equity,  could  not 
be  relieved  in  chancery  without  transmutation  of  possession,  or  an  agree- 
ment founded  on  a  consideration ;  and  therefore  if  bargain  and  sale  were 
made  of  a  man's  lands,  on  the  payment  of  the  money,  the  use  could  have 
arisen  without  deed  by  parol;  but  if  the  use  was  in  consideration  of  blood, 
then  it  could  not  arise  by  parol  agreement  without  a  deed,  because  that  agree- 
ment  ivas  not  an  obliging  agreement :  it  wanted  a  consideration,  and  therefore, 
to  make  it  an  oUiging  agreement,  there  was  necessity  of  a  deed.''  Jones  v. 
Morley,  12  Mod.  161. 

"  Thus,  if  equity  be  governed  by  the  strict  analogy  of  uses,  the  court 
cannot  act  upon  meritorious  consideration  where  the  contract  is  by  parol; 
and  though,  where  the  agreement  is  under  seal,  the  argument  of  analogy 
applies,  yet  it  follows  not  that  equity  will  now  raise  a  trust  because 
formerly  it  would  have  created  a  use.  A  bargain  and  sale  for  5s.  consid- 
eration still  operates  by  way  of  conveyance  to  transfer  the  estate;  but 
should  the  bargain  and  sale  be  void  as  such  for  want  of  an  indenture  or 
an  indenture  duly  enrolled,  it  could  not  be  argued  that  the  agreement  at 
the  present  day  would  be  specifically  executed  upon  the  basis  of  a  trust. 
It  may  further  be  remarked,  that  if  the  covenant  to  stand  seized  to  uses 

107 


§  109.]  EXPRESS   TRUSTS,   ETC.  [CHAP.  III. 

founded  upon  a  meritorious  consideration,  if  the  instrument 
is  under  seal,i  though  the  rule  is  not  fully  established,  and 

were  now  to  regulate  the  administration  of  trusts,  there  would  still  be  no 
ground  for  extending  the  relief  to  creditors,  who,  however,  it  is  admitted 
on  all  hands,  are  equally  entitled  to  the  benefit  of  meritorious  considera- 
tion. And  the  covenant  to  stand  seized  to  uses  extended,  we  must  remem- 
ber, not  only  to  wife  and  child,  but  also  to  brothers,  nephews,  and  cousins; 
but  no  one  at  the  present  day  would  think  of  admitting  the  same  latitude 
in  the  execution  of  a  trust. 

"  With  respect  to  the  jurisdiction  of  the  court  in  supplying  surrenders 
of  copyholds,  the  principle  upon  which  the  relief  is  founded  appears  to  be 
this,  that  as  the  heir  was  never  meant  by  the  law  to  take  otherwise  than 
in  default  of  the  ancestor's  will,  if  the  ancestor  manifests  any  intention  in 


1  Stone  V.  Stone,  L.  R.  5Ch.  74;  Shepherd  v.  Bevin,  4  Md.  Ch.  1.33  :  9 
Gill,  32;  Harris  v.  Haines,  6  Md.  43.5;  Mclntire  i'.  Hughes,  4  Bibb,  186; 
Mahan  v.  Mahan,  7  B.  Mon.  579 ;  Bright  v.  Bright,  8  B.  Mon.  194 ;  Den- 
nison  v.  Goehring,  7  Barr,  175;  Hayes  v.  Kershaw,  1  Sand.  258;  Taylor 
V.  James,  4  Des.  5 ;  Caldwell  v.  Williams,  1  Bai.  Eq.  175 ;  Garner  v.  Gar- 
ner, 1  Busb.  Eq.  1;  Jones  v.  Obinchain,  10  Grat.  259;  Harvey  v.  Alex- 
ander, 1  Rand.  219;  Blackely  v.  Holton,  5  Dana,  520;  2  Spence,  Eq.  Jur. 
58  ;  Pennington  v.  Gitting,  2  Gill  &  J.  208;  Tolar  v.  Tolar,  Dev.  Ch  451 ; 
Thompson  v.   Thompson,  2   How.  (Miss.)  737;  Woodson  v.  McClelland, 

4  Miss.  495.     But  see  Taylor  v.  Taylor,  2  Humph.  597;  Martin  r.  Ramsey, 

5  Humph.  349 ;  Campbell's  Estate,  7  Barr,  101 ;  Kennedy  ?'.  Ware,  1  Barr, 
445;  Cressman's  Appeal,  42  Pa.  St.  155;  Bunn  v.  Winthrop,  1  Johns. 
Ch.  329.  The  above  cases  of  Mclntire  ?;.  Hughes,  Mahan  v.  Mahan,  and 
Bright  r.  Bright,  are  direct  decisions  upon  the  point,  and  fully  establish 
the  rule  for  the  State  of  Kentucky,  while  the  cases  of  Bunn  v.  \A'inthrop, 
Dennison  v.  Goehring,  Jones  v.  Obinchain,  and  most  of  the  other  cases, 
presented  a  completely  executed  trust  for  enforcement,  and  the  court  was 
not  called  upon  to  decide  whether  a  meritorious  consideration  alone  would 
support  an  executory  trust.  In  Hayes  v.  Kershaw,  the  settlement  was 
for  a  collateral  relative,  and  the  Vice-Chancellor  declined  to  support  it, 
but  intimated  in  strong  language  that  an  executory  trust  for  a  wife  or 
child  would  be  supported  upon  meritorious  consideration  merely.  The 
cases  are  very  fully  commented  upon  by  the  learned  editors  to  1  Lead. 
Cas.  in  Eq.  330-333,  with  a  strong  leaning  to  the  opinion  that  voluntary 
executory  trusts  for  a  wife  or  child  would  be  supported.  The  learned 
editors  also  express  strong  doubts  whether  the  case  of  Ellis  v.  Nimmo, 
1  Lloyd  &  Goold,  333,  is  overruled  by  the  cases  which  are  usually  thought 
to  overrule  it;  and  their  criticism  is  ingenious  and  acute.  They  do  not, 
however,  advert  to  the  case  of  Moore  v.  Crofton,  3  Jon.  &  La.  442.  See 
Cox  V.  Sprigg,  6  Md.  274. 

108 


CHAP.  III.]  VOLUNTARY    SETTLEMENTS,  [§  109. 

perhaps,  upon  thorough  consideration,  would  not  be  acted 
upon.     But  the  rule  would  be  strictly  confined  to  a  wife  and 

favor  of  a  meritorious  object,  the  court  will  not  suffer  the  mere  want  of 
form  to  carry  a  benefit  to  the  representative.  '  1  have  looked,'  said  Lord 
Alvanley,  '  at  all  the  cases  I  can  find  upon  -what  principle  this  court  goes 
in  supplying  the  defect.  It  is  this:  whenever  a  man  having  power  over 
an  estate,  whether  ownership  or  not,  in  discharge  of  moral  or  natural 
obligation,  shows  an  intention  to  execute  such  power,  the  court  will  oper- 
ate upon  the  conscience  of  the  heh-  to  make  him  perfect  this  intention. 
This  is  not  to  be  confounded  with  the  case  of  the  heirs  being  disinherited 
by  a  will  of  freeholds  not  duly  executed  :  there  is  no  will  at  all.  The 
court  cannot  see  that  there  is  such  an  instrument ;  but  whenever  there  is 
such  a  power,  it  has  been  executed.'  Chapman  v.  Gibson,  3  Bro.  Ch. 
230.     And  see  Ellis  v.  Nimmo,  Lloyd  &  Goold,  341. 

"  The  ground  upon  which  the  courts  aid  the  defective  execution  of 
poioers  will  be  found  upon  examination  to  be  precisely  that  upon  which 
it  supplies  the  surrender  of  copyholds.  The  power  to  the  extent  to  which 
it  may  be  exercised  is  regarded  in  equity  as  part  of  the  dominion,  —  as  a 
portion  of  the  actual  estate ;  and  the  donee  of  it  is  pro  tanto  the  bond  fide 
owner  of  the  property,  and  the  person  taking  in  default  of  the  donee's  dis- 
position is  a  quasi  heir.  Holmes  v.  Coghill,  12  Ves.  213;  Coventry  v. 
Coventry,  at  the  end  of  Francis's  Maxims  in  Equity.  The  only  distinction 
between  an  actual  heir  and  the  person  taking  in  default  of  the  power  is 
this:  that  the  former  is  so  constituted  by  course  of  law,  while  the  latter  is 
a  quasi  heir  specially  appointed  by  the  settlor.  Thus  in  aiding  the  defective 
execution  of  powers  the  court  says,  as  in  supplying  surrenders,  the  donee  of 
the  power,  who  is  the  owner  of  the  property  to  the  extent  of  that  power, 
has  indicated  an  intention  of  providing  for  a  meritorious  object,  and  the 
person  taking  in  default  of  the  power,  who  is  a  kind  of  heir,  shall  not, 
through  want  of  form,  run  away  with  the  estate  from  those  who  are  much 
better  entitled. 

"  It  is  clear  that  an  agreement  founded  on  meritorious  consideration 
will  not  be  executed  as  against  the  settlor  himself.  Antrobus  v.  Smith, 
12  Ves.  39.  Indeed,  relief  in  such  a  case  would  offend  against  the  security 
of  property ;  for  if  a  man  improvidently  bind  himself  by  a  complete  alien- 
ation, the  court  will  not  unloose  the  fetters  he  hath  put  upon  himself,  but 
he  must  lie  down  under  his  own  folly.  Villers  v.  Beaumont,  1  Vern.  101  ; 
but  if  the  court  interpose  where  the  act  is  left  incomplete,  what  is  it  but 
to  wrest  property  from  a  person  who  has  not  legally  parted  with  it?  An- 
other observation  that  suggests  itself  is,  that  during  the  life  of  the  settlor 
the  ground  of  the  meritorious  consideration  scarcely  seems  to  appl_y ;  for 
can  it  be  thought  to  be  the  duty  of  a  husband  to  endow  his  wife,  during 
the  coverture,  with  a  separate  and  independent  provision  ?  or  is  a  parent 
bound  by  any  natural  or  moral  obligation  to  impoverish  himself  (for  such 

109 


§  110.]  EXPRESS   TRUSTS,    ETC.  [CHAP.  III. 

child,  and  would  not  be  extended  to  brotliers,  sisters,  nephews, 
or  parents,^  and  probably  not  to  gTandchildren,^  nor  to 
illegitimate  children.^ 

§  110.  Marriage  is  a  valuable  consideration,  therefore  ex- 
ecutory agreements,  made  in  contemplation  of  marriage,  will 
be  enforced  if  the  marriage  actually  takes  place.* 

a  case  may  be  supposed)  for  the  purpose  of  enriching  a  child  ?  or  has  a 
court  of  equity  the  jurisdiction  to  appropriate  a  specific  fund  to  creditors, 
when  the  debtor  is  still  living  ?  the  presumption  of  law  is  that  the  credi- 
tor can  obtain  satisfaction  of  his  debt  by  the  usual  legal  process.  It  is 
after  the  decease  of  the  settlor  that  meritorious  consideration  becomes 
such  a  powerful  plea  in  a  court  of  equity.  The  wife  and  children  have 
then  lost  the  personal  support  of  the  husband  and  parent,  and  who  can 
have  a  juster  claim  to  the  inheritance  of  the  property?  The  creditor  is 
then  barred,  by  act  of  God,  of  his  remedy  against  the  debtor  ;  and  should 
the  assets  prove  insufficient,  how  but  by  the  assistance  of  equity  can  he 
hope  to  be  satisfied  in  his  demand?  Another  objection  to  the  execution 
of  a  voluntary  contract  against  the  settlor  himself,  at  least  in  respect  of 
land,  is  the  principle  expressed  by  Lord  Cowper,  that  equity,  like  nature, 
will  do  nothing  in  vain.  Seeley  v.  Jago,  1  P.  Wms.  389;  Billingham  v. 
Lawthen,  1  Ch.  Ca.  243;  Pulvertoft  v.  Pulvertoft,  18  Ves.  99;  as  if 
money  be  directed  to  be  converted  into  land,  or  land  into  money,  the 
devisee  or  legatee  may  elect  to  take  the  property  in  the  original  state,  for 
should  the  court  direct  an  actual  conversion,  the  devisee  or  legatee  might 
immediately  annul  the  order  by  resorting  to  a  reconversion ;  and  so,  should 
the  court  decree  a  specific  performance  of  a  contract  regarding  realty  for 
meritorious  consideration,  the  property  the  next  moment  might  be  dis- 
posed of  to  a  hona  fide  purchaser,  and  the  settlement  become  nugatory. 
Again,  if  the  imperfect  gift  can  be  enforced  against  the  settlor  himself, 
then  the  equitable  right  must  form  a  lien  upon  the  property;  and  upon  the 
death  of  the  settlor  his  heir  would,  in  all  events,  be  bound  to  convey:  but 
even  in  aiding  the  defective  execution  of  powers  and  supplying  surrenders 
of  copyholds,  a  previous  inquiry  by  the  master  is  invariably  directed 
whether  the  heir  of  the  settlor  has  any  other  adequate  provision." 

1  Downing  v.  Townsend,  Amb.  592 ;  Buford's  Heirs  v.  M'Kee,  1  Dana, 
107;  Hayes  v.  Kershaw,  1  Sand.  Ch.  258. 

2  Buford's  Heirs  v.  M'Kee,  1  Dana,  107. 

^  Fursaker  v.  Robinson,  Pr.  Ch.  475;  but  see  Bunn  v.  Winthrop, 
1  Johns.  Ch.  329. 

*  Duval  V.  Getting,  Gill,  38;  Gough  v.  Crane,  3  Md.  Ch.  119;  Crane 
V.  Gough,  4  Md.  Ch.  316;   Hale  v.  Lamb,  2  Eden,  271;  Stone  v.  Stone, 
L.  R.  5  Ch.  74. 
110 


CHAP.  III.]  VOLUNTARY    SETTLEMENTS.  [§  111. 

§  111.  A  contract  under  seal  imports  a  consideration,  and 
an  action  at  law  can  be  maintained  upon  such  a  contract. 
And  it  has  sometimes  been  supposed  that  a  court  of  equity 
would  enforce  a  contract  in  favor  of  a  volunteer  whenever  an 
action  of  law  could  be  sustained  upon  the  instrument.^  But 
equity  never  enforced  a  voluntary  covenant,  though  under 
seal,  to  stand  seized  to  the  uses  of  a  stranger ;  and  it  is  now 
settled,  in  England,  that  equity  will  not  enforce  a  voluntary 
contract,  although  under  seal.^  Equity  will  not  decree  the 
specific  performance  of  a  contract,  where  a  court  of  law 
w^ould  give  only  nominal  damages.  In  the  United  States, 
however,  considerable  stress  is  laid  upon  the  solemnity  of  a 
seal.  The  courts  say  that  they  will  not  execute  a  voluntary 
executory  agreement  unless  it  is  under  seal,^  thereby  imply- 
ing that  an  executory  contract  under  seal  will  be  enforced, 
though  voluntary.  And  in  Kentucky,  where  the  distinction 
between  sealed  and  unsealed  instruments  is  now  abolished,  a 
voluntary  executory  contract  not  under  seal  has  been  upheld.* 
But  there  is  the  same  uncertainty  whether  a  seal  would 
render  a  voluntary  executory  contract  binding  in  equity,  as 
there  is  whether  a  mere  meritorious  consideration  will  enable 
the  court  to  enforce  the  settlement.  Generally,  in  America, 
very  little  regard  is  paid  to  mere  formalities,  and  a  seal  is 
regarded  in  most  States  as  a  mere  formality.  A  mere  scratch 
or  scroll  of  the  pen  passes  for  a  seal,  and  in  some  States  they 

'  1  Beard  v.  Nutthall,  1  Vera.  427;  Williamson  v.  Coddrington,  1  Ves. 
511 ;  Hervey  v.  Audland,  14  Sim.  531 ;  Husband  v.  Pollard  and  Randal 
V.  Randal,  2  P.  Wms.  467 ;  Vernon  c.  Vernon,  Id.  594 ;  Goring  v.  Nash, 

3  Atk.  186;  Stephens  v.  Trueman,  1  Ves.  73;  Wiseman  v.  Roper,  1  Ch. 
R. 158. 

2  Hale  V.  Lamb, 2  Eden,  294 ;  Fursaker  ;).  Robinson,  Pr.  Ch.  475 ;  Evelyn 
V  Templar,  2  Bro.  Ch.  148;  Colman  v.  Sarel,  3  Bro.  Ch.  12;  Jefferys  v. 
Jefferys,  1  Cr.  &  Ph.  138;  Meek  v.  Kettlewell,  1  Hare,  464;  Fletcher  v. 
Fletcher,  4  Hare,  74;  Newton  v.  Askew,  11  Beav.  145;  Dillon  v.  Coppin, 

4  M.  &  Cr.  647;  Kekewich  v.  Manning,  1  De  G.,  M.  &  G.  188;  Dening  v. 
Ware,  22  Beav.  184. 

8  Kennedy  v.  Ware,  1  Barr,  445 ;  Caldwell  v.  Williams,  1  Bailey,  Eq. 
175;  Dennison  v.  Goehring,  7  Barr,  175;  Mclntire  v.  Hughes,  4  Bibb, 
186. 

*  Mahan  v.  Mahan,  7  B.  Mon   579. 

Ill 


§  111  a.]  EXPRESS   TRUSTS,   ETC.  [CHAP.  III. 

aie  abolished  altogether.  Why  any  effect  should  be  given 
to  a  form  that  has  ceased  to  be  a  solemnity  would  be  hard 
to  explain  on  principle,  and  is  equally  uncertain  upon  the 
authorities. 

§  111  a.  By  the  construction  given  to  the  New  York  stat- 
utes a  trust  to  sell  land  for  the  benefit  of  creditors  and 
legatees  must  be  absolute  and  imperative  without  discretion 
in  the  trustee ;  and  a  trust  to  receive  rents  and  profits  is  not 
valid  if  there  is  no  direction  to  apply  them  to  the  use  of  any 
person  or  for  any  period.^ 

1  Cooke  V.  Piatt,  98  N.  Y.  38,  39. 
112 


CHAP.  IV.]  PRECATORY  WORDS.  [§  112. 


CHAPTER   IV. 

IMPLIED      TRUSTS. 

§  112.    The  manner  in  which  trusts  are  implied,  and  the  words  from  which  they  are 
implied. 

§  113.   Words  from  which  a  trust  will  not  be  implied. 
§§  114-116.   Rules  by  which  trusts  will  or  will  not  be  implied. 
§§  117, 118.   Implied  trusts  from  directions  as  to  the  maintenance  of  children  or  others. 

§  119.   When  trusts  for  maintenance  are  not  implied. 

§  120.   Rules  that  govern  implied  trusts. 

§  121.   Trusts  arising  by  implication  from  the  provisions  of  a  will. 

§  122.   Implied  trusts  arising  from  contracts. 

§  123.   A  direction  to  employ  certain  persons  does  not  raise  an  implied  trust. 

§  112.  Implied  trusts  are  those  that  arise  when  trusts  are 
not  directly  or  expressly  declared  in  terms,  but  the  courts, 
from  the  whole  transaction  and  the  words  used,  imply  or  in- 
fer that  it  was  the  intention  of  the  parties  to  create  a  trust.^ 
Courts  seek  for  the  intention  of  the  parties,  however  informal 
or  obscure  the  language  may  be ;  and  if  a  trust  can  fairly 
be  implied  from  the  language  used  as  the  intention  of  the 
parties,  the  intention  will  be  executed  through  the  medium  of 
a  trust.  Implied  trusts  may  arise  out  of  agreements  and 
settlements  inter  vivos  "^  where  there  is  a  sufficient  consider- 
ation ;  but  they  more  frequently  arise  from  the  construction 
of  wills  where  a  consideration  is  implied.  In  Pennsylvania, 
such  words  as  "  my  wish  is,"  "  my  further  request  is,"  or 
others  merely  expressive  of  a  desire,  recommendation,  or  con- 
fidence, are  not  sufficient  to  convert  a  devise  or  bequest  into 
a  trust.^  But  the  general  rule  is  that  if  a  testator  make  an 
absolute  gift  to  one  person  in  his  will,  and  accompany  the 

1  Lane  v.  Lane,  8  Allen,  350. 
•^  Liddard  v.  Liddard,  28  Beav.  266. 

8  Hopkins  v.  Glunt,  111  Pa.  St.  287;  Bowlby  v.  Thunder,  105  Pa.  St. 
178;  Colton  v.  Colton.  10  Sawy.  (U.  S.)  825. 

VOL.  I.-8  '  113 


§  11 '2]  IMPLIED    TRUSTS.  [CHAP.  IV. 

^ift  with  words  expressing  a  "  belief,"  ^  "  desire,"  ^  "  will,"  ^ 
"•  request,"  ^  "'  will  and  desire  ; "  ^  or,  if  he  "  will  and  declare,"^ 
"  wish  and  request,"  ^  "  wish  and  desire,"  ^  "  entreat,"  ^  "  most 
heartily  beseech,"  ^°  •'  order  and  direct,"  ^^  "  authorize  and  em- 
power," 12  "  recommend,"  ^^  "  hope,"  i*  "  do  not  doubt,"  ^^  »  be 
well  assured,"  ^^  "  confide,"  i"  "  have  the  fullest  confidence,"  ^^ 

1  Gary  v.  Gary,  2  Sch.  &  Le.  189;  Paul  v.  Gompton,  8  Ves.  380. 

2  Harding  v.  Glyn,  1  Atk.  469  ;  Mason  v.  Limburg  and  Vernon  v. 
Vernon,  Amb.  4;  Trot  v.  Vernon,  8  Vin.  Abr.  72;  Pushman  v.  Filliter, 
3  Ves.  7;  Brest  r.  Offley,  1  Gh.  R.  246;  Bonser  v.  Kinnear,  2  Gif.  195; 
Cruwys  v.  Golman,  9  Ves.  319:  Shaw  i'.  Lawless,  Lloyd  &  Goold,  154;  5 
Gl.  &  Fin.  129 ;  Lloyd  &  Goold,  Tern.  Plunket,  559. 

8  Eales  V.  England,  Pr.  Ch.  200 ;  Glowdsley  j;.  Pelham,  1  Vern.  411. 

*  Pierson  v.  Garnet,  2  Bro.  Gh.  38,  226:  Eade  ;;.  Eade,  5  Mad.  118  ; 
Moriarty  v.  Martin,  3  Ir.  Gh.  26;  Bernard  v.  MinshuU,  1  Johns.  276; 
Knox  V.  Knox,  59  Wis.  172. 

5  Birch  V.  Wade,  3  Ves.  &  B.  198;  Forbes  v.  Ball,  3  Mer.  437. 

6  Gray  v.  Gray,  11  Ir.  Ch.  218. 

■^  Foley  V.  Parry,  5  Sim.  139;  2  M.  &  K.  138;  Gook  v.  Ellington,  6 
Jones,  Eq.  371. 

8  Liddard  v.  Liddard,  28  Beav.  266;  Cockrill  v.  Armstrong,  31  Ark.  580. 

5  Prevost  f.  Glarke,  2  Mad.  458;  Meredith  v.  Heneage,  1  Sim.  513; 
Taylor  v.  George,  2  Ves.  &  B.  378. 

^°  Meredith  v.  Heneage,  1  Sim.  553. 

"  Gary  v.  Gary,  2  Sch.  &  Le.  189;  White  v.  Briggs,  2  Phill.  583. 

12  Brown  v.  Higgs,  4  Ves.  708;  5  Ves.  495;  8  Ves.  561;  18  Ves.  192. 

13  Tibbits  V.  Tibbits,  Jac.  317;  19  Ves.  656  ;  Horwood  v.  West,  1  Sim. 
&  St.  387:  Paul  v.  Gompton,  8  Ves.  380;  Malim  v.  Keighley,  2  Ves.  Jr. 
333,  529;  Malim  v.  Barker,  3  Ves.  150;  Meredith  v.  Heneage,  1  Sim.  543; 
Kingston  v.  Lorton,  2  Hog.  166  ;  Gholmondeley  v.  Gholmondeley,  14  Sim. 
590:  Hart  v.  Tribe,  18  Beav.  215;  Meggison  r.  Moore,  2  Ves.  Jr.  630; 
Sale  V.  Moore,  1  Sim.  534;  Ex  parte  Payne,  2  Y.  &  Goll.  636;  Randal  v. 
Hearle,  1  Anst.  124  ;  Lefroy  v.  Flood,  4  Ir.  Gh.  1 ;  Cunliffe  v.  Gunliffe, 
Amb.  686,  distinguished  in  Pierson  v.  Garnet,  2  Bro.  Gh.  46;  Malim  v. 
Keighley,  2  Ves.  Jr.  333;  Pushman  v.  Filliter,  3  Ves.  7;  Webster  v. 
Morris,  66  Wis.  366. 

14  Harland  v.  Trigg,  1  Bro.  Gh.  142;  Paul  v.  Gompton,  8  Ves.  380. 

15  Parsons  i'.  Baker,  18  Ves.  476  ;  Taylor  v.  George,  2  Ves.  &  B.  378  ; 
Malone  v.  O'Connor,  Lloyd  &  Goold,  465  ;  Sale  v.  Moore,  1  Sim.  534. 

19  Macey  v.  Shurmer,  1  Atk.  389;  Anst.  520;  Ray  v.  Adams,  3  M.  & 
K.  237. 

"  Griffiths  V.  Evans,  5  Beav.  241 ;  Shepherd  r.  Nottidge,  2  J.  &  H.  766. 
"  Shovelton  v.  Shovelton,  32  Beav.  143  ;  Wright  v.   Atkyns,   17  Ves. 
114 


CHAP.  IV.]  PRECATORY    WORDS.  [§  112. 

"  trust  and  confide,"  ^  "  have  full  assurance  and  confident 
hope  ; "  2  or,  if  he  make  the  gift  "  under  the  firm  conviction,"  ^ 
or  "  well  knowing ; "  *  or,  if  he  use  the  expression,  "  of  course 
the  legatee  Avill  give,"  ^  or,  "  in  consideration  that  the  legatee 
has  promised  to  give,"^  —  in  these  and  similar  cases  courts 
will  consider  the  intention  of  the  testator  as  manifestly  im- 
plied, and  they  will  carry  the  intention  into  effect  by  declaring 
the  donee  or  first  taker  to  be  a  trustee  for  those  whom  the 
donor  intended  to  benefit.'  And  so  the  words,  "  it  is  my 
wish,"  s  "  it  is  my  wish  and  will,"  ^  "  having  confidence,"  ^*^ 
"  I  desire  that  the  donee  should  appropriate  150  per  year,"  ^^ 
"  to  be  disposed  of  and  divided  among  my  children,"  ^^  "  with 
full  confidence  that  they  will  dispose  of  such  residue  among 
our  brothers  and  sisters  according  to  their  best  discretion,"  ^^ 
"  intrusting  to  her  the  education  and  maintenance  of  his 
children  out  of  the  profits  of  the  estate,"  i*  "  I  also  allow  my 
son  to  give  her  a  support  off  my  plantation  during  her  life,"  ^^ 

255  ;  19  Ves.  299;  G.  Cooper,  111  ;  T.  &  R.  143  ;  Webb  v.  Wools,  2  Sim. 
(n.  s.)  267;  Palmer  v.  Simmonds,  2  Dr.  225;  Warner  v.  Bates,  98  Mass. 
274. 

1  Wood  V.  Cox,  1  Keen,  317;  2  My.  &  Cr.  684 ;  Pilkington  v.  Boughey, 
12  Sim.  114. 

2  Macnab  e.  Whitbread,  17  Beav.  299. 

3  Barnes  v.  Grant,  2  Jur.  (n.  s.)  1127  ;  26  L.  J.  Ch.  92. 

*  Bardswell  v.  Bardswell,  9  Sim.  319;  Nowland  v.  Nelligan,  1  Bro.  Ch. 
489 ;  Briggs  i-.  Penny,  3  Mac.  &  G.  546  ;  3  De  G.  &  Sm.  525. 

6  Robinson  v.  Smith,  6  Madd.  124 ;  Lechmere  v.  Lavie,  2  M.  &  K.  197. 

^  Clifton  V.  Lombe,  Amb.  519. 

^  Warner  v.  Bates,  98  Mass.  276;  Lambe  v.  Eames,  L.  R.  10  Eq.  267. 

8  Brunson  v.  Hunter,  2  Hill,  Ch.  490. 

9  McRee's  Ad'r  v.  Means,  34  Ala.  349. 

1"  Dresser  V.  Dresser,  46  Me.  48;  Reid's  Ad'r  v.  Blackstone,  14  Grat. 
363. 

"  Erickson  v.  Willard,  1  N.  H.  217. 

12  Collins  V.  Carlisle,  7  B.  Mon.  14. 

"  Bull  V.  Bull,  8  Conn.  47. 

"  Lucas  V   Lockhart,  10  Sm.  &  Mar.  466. 

IS  Hunter  v.  Stembridge,  12  Ga.  192.  In  this  case  the  court  construed 
the  word  allow  as  expressive  of  an  intention  —  the  testator  being  an  illit- 
erate man  —  that  the  son  should  support  his  mother  out  of  the  property 
given  him,  and  that  an  absolute  charge  or  trust  was  implied. 

115 


§  112.]  IMPLIED   TRUSTS.  [CHAP.  IV. 

were  held  to  create  trusts  in  favor  of  the  parties  to  be  bene- 
fited. And  so,  where  a  testator  gave  a  sum  of  money  to 
trustees  "  to  pay  the  income  yearly  to  his  son  for  the  support 
of  himself  and  family,  and  the  education  of  his  children,"  it 
was  held  that  the  income  was  taken  in  trust  by  the  son,  and 
that  the  wife  and  children  could  enforce  its  appropriation  in 
part  for  their  support.^     "  To  my  daughter  A.  I  give  [naming 

1  Cole  r.  Littlefield,  35  Me.  439 ;  Wright  v.  Miller,  8  N.  Y.  9;  1  Sandf 
103  ;  Whiting  y.  Whiting,  4  Gray,  240;  Chase  v.  Chase,  2  Allen,  101; 
Hadow  ?'.  Hadow,  9  Sim.  438;  Jubber  v.  Jubber,  Id.  503;  Longmore  v. 
Elcum,  2  y.  &  C.  Ch.  363;  Leach  v.  Leach,  13  Sim.  304;  Hart  v.  Tribe, 
19  Beav.  149  ;  Raikes  v.  Ward,  1  Hare,  445;  Crockett  v.  Crockett,  2 
Phill.  555.  Technical  language  is  not  necessary  to  create  a  trust.  It  is 
enough  if  such  intention  is  apparent.  Thus  words  of  recommendation, 
request,  entreaty,  wish,  or  expectation,  addressed  to  a  devisee  or  legatee, 
will  make  him  a  trustee  for  those  persons  in  favor  of  whom  such  ex- 
pressions are  used  ;  provided  that,  from  the  construction  of  the  whole 
will,  such  is  the  apparent  intention  of  the  testator,  and  provided  that  he 
has  pointed  out  with  sufficient  clearness  and  certainty  both  the  subject- 
matter  and  the  object  of  the  trust.  Thus,  in  Massey  v.  Sherman,  Amb. 
520,  a  testator  devised  property  to  his  wife,  not  doubting  that  she  would 
dispose  of  the  same  to  and  among  his  children  as  she  should  please,  it 
was  held  to  be  a  trust  for  the  children.  See  also  Macey  v.  Shurmer, 
1  Atk.  389 ;  AVynne  r.  Hawkins,  1  Bro.  Ch.  179;  Parsons  v.  Baker,  18 
Ves.  476;  Malone  v.  O'Connor,  2  Lloyd  &  Goold,  465.  And  in  Pierson  v. 
Garnet,  2  Bro.  Ch.  38,  226,  a  testator  gave  a  residue  to  A.,  with  his  dying 
request  that  if  A.  died  without  issue  he  would  dispose  of  it  in  a  certain 
manner  pointed  out;  but  Lord  Kenyon  and  Lord  Thurlow  held  that,  in 
the  event,  a  trust  was  implied  and  created.  And  see  Re  O'Rierne,  1  Jon. 
&  La.  352.  And  so  in  Malim  v.  Keighley,  2  Ves.  Jr.  333,  359,  a  testator 
recommended  a  daughter,  to  whom  he  made  a  bequest,  to  dispose  of 
it  at  her  death  in  a  certain  manner,  and  it  was  held  to  create  a  trust. 
See  also  Paul  v.  Compton,  8  Ves.  380;  Ford  v.  Fowler,  3  Beav.  146; 
Knott  V.  Cottee,  16  Beav.  77;  Cholmondeley  v.  Cholmondeley,  14  Sim. 
590.  But  in  Meggison  v.  Moore,  2  Ves.  Jr.  630,  the  word  "  recommend," 
under  the  peculiar  circumstances  of  the  case,  was  held  not  to  create  a 
trust ;  but  the  case  throws  no  particular  light  upon  the  principle.  In 
Bird  V.  Wade,  3  Ves.  &  B.  198,  2  Ves.  467,  the  testator  added  to  his 
bequest  of  a  part  of  his  property  that  it  was  his  will  and  desire  that 
the  bequest  be  left  entirely  to  her  disposal  among  such  of  her  relations  as 
she  may  think  proper.  The  devisee  having  died  without  disposing  of  the 
property,  it  was  held  to  be  a  trust  for  her  next  of  kin.  See  also  Brest  v. 
Offley,  1  Ch.  R.  246;  Harding  v.  Glyn,  1  Atk.  469:  Eai  1  of  Bute  i>.  Stuart, 
116 


CHAP.  IV.]  PRECATORY    WORDS.  [§  112, 

certain  property]  for  the  support  of  my  daughter  C."  creates 
a  trust.i 

2  Eden,  87;  1  Bro.  P.  C.  Taml.  476;  Wright  v.  Atkyns,  19  Ves.  299; 
Cooper,  111 ;  Gary  v.  Gary,  2  Sch.  &  Le.  173,  189;  Forbes  v.  Bale,  3  Mer. 
441 ;  Horwood  ;;.  West,  1  Sim.  &  St.  387. 

In  Prevost  v.  Glarke,  2  Madd.  458,  a  testatrix  gave  property  to  her 
daughter,  and  "  entreated  "  her  son-in-law,  husband  of  the  daughter,  if  he 
should  not  have  children  by  her  daughter  and  should  survive  her,  that  he 
would  leave  any  part  of  the  property  that  came  to  him  to  her  other 
children  and  grandchildren  at  his  decease.  These  words  were  held  to 
create  a  contingent  trust  for  her  other  children  and  grandchildren.  So 
in  Pilkington  v.  Boughey,  12  Sim.  114,  where  a  testator  recited  in  his 
will  that  he  had  purchased  an  estate  for  a  particular  purpose,  and  then 
devised  it  to  certain  individuals  in  trust,  and  "  trusted  "  that  they 
would  apply  it  to  such  purposes  as  they  knew  he  would  most  approve 
of,  it  was  held  to  be  a  trust.  In  Foley  v.  Parry,  2  My.  &  K.  138,  a 
testator  gave  property  to  his  wife  for  life,  the  remainder  to  his  nephew 
for  life,  and  then  declared  it  to  be  his  particular  wish  and  request 
that  his  wife,  or  a  third  person,  should  superintend  and  take  care  of 
the  education  of  his  nephew;  and  it  was  determined  that  there  was  a 
trust  in  the  life-estate  given  to  the  widow  to  maintain  and  educate  the 
nephew  until  he  was  twenty-one.  See  also  same  case  in  5  Sim.  138.  So 
more  doubtful  expressions  have  been  held  to  create  trusts:  as  "I  desire 
him  to  give,"  Mason  v.  Limbury,  cited  Vernon  v.  Vernon,  Amb.  4;  "I 
hereby  request,"  Nowlan  v.  Nelligan,  1  Bro.  Gh.  489;  '-I  empower  and 
authorize  her  to  settle  and  dispose  of  the  estate  to  such  persons  as  she 
shall  think  fit  by  her  will,  confiding  in  her  not  to  alienate  the  estate  from 
my  family,"  Griffiths  v.  Evans,  5  Beav.  241  (see  also  Brook  v.  Brook, 

3  Sm.  &  Gif.  280;  Alexander  v.  Alexander,  2  Jur.  (n.  s.)  898;  "I  advise 
him  to  settle,"  Parker  v.  Bolton,  5  L.  J.  (n.  s.)  Ch.  98) ;  "My  last  wish, 
my  dear  daughter,  is  that  you  do  give  my  granddaughter  £1000,"  Hinx- 
man  v.  Poynder,  5  Sim.  546;  "  require  and  entreat,"  Taylor  v.  George,  2 
Ves.  &  B.  378;  "  trusting  that  he  will  preserve  the  same  so  that,  after  his 
decease,  it  will  go  and  be  divided,"  &c..  Baker  v.  Mosely,  12  Jur.  740; 
"under  the  conviction  that  he  will  dispose,"  &c.,  Barnes  v.  Grant,  26  L. 
J.  Ch.  92,  2  Jur.  (n.  s.)  1127;  "  to  apply  the  same,"  Saulsbury  w.  Denton, 
3  K.  &  J.  392;  "  the  other  children  may  be  allowed  to  participate,"  &c., 
Liddard  v.  Liddard,  6  Jur.  (n.  s.)  459,  28  Beav.  266.  As  before  said, 
however,  such  expressions  will  not  create  a  trust,  if  by  the  context  no 
trust  is  intended  to  arise  ;  as  if  a  trust  is  at  one  time  created,  but  by  a 
codicil  is  revoked  on  account  of  the  inconvenience,  and  there  is  a  direc- 
tion that  the  "property  be  disposed  of  for  the  good  of  the  family,"  Alex- 


Buflanton  v.  Maxam,  140  Mass.  557. 

117 


§  113.]  IMPLIED   TRUSTS.  [CHAP.  IV. 

§  113.  On  the  other  hand,  it  has  been  held  that  no  trust 
was  implied  when  property  was  given  to  a  donee  connected 

ander  v.  Alexander,  2  Jur.  (n.  s.)  898.  The  question  in  all  cases  is,  is 
the  devisee  or  legatee  a  beneficiary  or  a  trustee  of  the  gift  bestowed  upon 
him ;  and  that  depends  upon  the  intention  of  the  testator.  But  parol 
evidence  of  the  intention  of  the  testator  cannot  be  introduced,  Irvine  v. 
Sullivan,  L.  R.  8  Eq.  673.  If  there  is  a  direct  trust,  there  is  no  doubt; 
if  there  are  precatory  words,  then  it  remains  to  determine  whether  there 
is  an  imperative  trust,  or  whether  the  words  are  merely  suggestions  to 
guide  the  discretion  of  the  devisee  in  disposing  of  the  property,  the 
testator  having  implicit  confidence  and  reliance  in  him,  and  leaving  him 
the  sole  judge  whether  he  will  follow  the  suggestions  or  not.  If  the 
testator  supposed  that  he  was  creating  an  imperative  trust,  whether  ex- 
press or  imperative  from  precatory  words,  a  trust  will  be  raised  because 
such  is  the  intention ;  and  if  such  trust  fails  because  the  purposes  of  the 
trust  are  uncertain,  or  the  amount  of  the  property  of  the  trust  is  uncer- 
tain, or  for  any  other  reason,  it  will  still  be  a  trust ;  but  it  will  result  to 
the  heirs-at-law,  next  of  kin,  or  residuary  legatees.  See  post,  §§  15.3-161. 
But  such  uncertainty  in  the  objects  of  the  trust,  or  in  the  persons  to 
be  benefited,  or  in  the  amount  of  the  property  to  be  subjected  to  the 
trust,  or  in  the  manner  of  applying  it,  are  facts  and  circumstances,  if 
they  exist  in  the  will  itself,  which  are  to  be  taken  into  consideration 
in  construing  it.  See  post,  §  116  ;  Barnard  v.  Minshull,  1  Johns.  287, 
1  Jarm.  on  Wills,  359  (3d  Lond.  ed.).  There  is  also  another  considera- 
tion. If  there  is  an  absolute  gift  in  the  first  instance  to  the  donee, 
mere  precatory  words  will  not  in  general  annex  a  trust  to  the  gift:  as  in 
Meredith  v.  Heneage,  1  Sim.  512,  10  Price,  306,  the  bequest  was  to  the 
donee,  "unfettered  and  unlimited,"  followed  by  precatory  words,  and 
they  were  held  not  to  create  a  trust.  In  Bonser  v.  Kinnear,  2  Gif.  195, 
there  was  a  gift  to  the  wife  ^^for  her  sole  use  and  benefit,  she  maintaining 
the  children;  "  it  was  held  to  be  a  trust,  the  words  implying  the  trust 
being  a  part  of  the  gift.  But  in  Wood  v.  Cox,  1  Keen,  317,  there  was  a 
gift  to  the  devisee  "  for  his  own  use  and  benefit,"  trusting  and  wholly 
confiding  in  his  honor  to  act  in  strict  conformity  to  the  testator's  wishes. 
There  were  some  other  circumstances,  and  Lord  Langdale  held  it  to  be 
an  implied  trust ;  but  Lord  Cottenham,  said  that,  to  make  the  devisee  a 
trustee,  the  words  "for  his  own  use  and  benefit  "  must  be  expunged  from 
the  will  :  2  ]\Iy.  &  Cr.  686 ;  and  see  the  judgment  in  the  case  of  Irvine  v. 
Sullivan,  L.  R.  8  Eq.  673.  In  Winch  v.  Brutton,  14  Sim.  379,  and  in 
Bardswell  v.  Bardswell,  9  Sim.  319,  there  were  gifts  to  the  use,  benefit, 
and  disposal,  absolutely  of  the  devisees,  "  nevertheless  earnestly  conjuring 
them,'^  to  dispose  of  them  in  a  certain  manner;  and  it  was  held  that, 
under  the  form  of  the  gifts  there,  there  were  no  trusts.  See  also  White 
f.   Briggs,  15  Sim.  33;  Fox  v.   Fox,  27  Beav.  301.     So  in  Johnson  i". 

118 


CHAP.  IV.]  PRECATORY    WORDS.  [§  113. 

with  expression  of  kindness  and  good-will  towards  other 
persons,  as  with  a  hope  that  "  he  would  continue  it  in  the 

Rowlands,  2  De  G.  &  S.,  a  gift  to  be  disposed  of  as  she  shall  think  proper, 
followed  by  a  recommendation,  was  held  not  to  create  a  trust.  The  case 
of  Williams  v.  Williams,  1  Sim.  (n.  s.)  358,  is  nearly  to  the  same  effect ; 
and  see  Green  v.  Marsdeu,  1  Drew.  646.  In  some  of  these  cases  the 
element  of  uncertainty  enters  into  the  construction  :  see  Bardswell  v. 
Bardswell,  14  Sim.  379;  Williams  v.  Williams,  1  Sim.  (n.  s.)  358. 
Webb  V,  Wools,  2  Sim.  (n.  s.)  267,  was  a  strong  case  in  this  respect. 
The  gift  was  to  the  wife,  her  executors,  administrators,  and  assigns,  "to 
and  for  her  and  their  sole  use  and  benefit,  upon  the  fullest  trust  and  con- 
fidence that  she  will  dispose  of  the  same,"  &c.  It  was  said  that  to 
allow  the  latter  words  to  create  a  trust  would  be  to  counteract  the 
former  words.  In  other  cases  where  the  gift  was  in  nearly  the  same 
words  but  "in  full  confidence  that  she  will  bestow  it,  on  her  decease,  to 
my  children,"  &c.,  Le  Marchant  v.  Le  Marchant,  L.  R.  18  Eq.  414; 
Curnick  v.  Tucker,  L.  R.  17  Eq.  320,  it  was  held  that  the  widow  took  a 
life-estate,  with  a  power  to  appoint  among  the  children  :  Ware  v.  Mal- 
lard, 21  L.  J.  Ch.  355;  16  Jur.  492;  Gully  v.  Cregoe,  24  Beav.  185. 
If  the  words  of  gift  to  the  wife  may  be  construed  as  making  the  gift  to 
her  sole  and  separate  use,  independent  of  her  husband,  the  trust  may  be 
sustained:  Cholmondeley  v.  Cholmondeley,  14  Sim.  590.  See  also  Stubbs 
V.  Sargon,  2  Keen,  255,  3  My.  &  Cr.  513;  but  see  Green  v.   Marsden, 

I  Drew.  646.  If  the  expressions  are  mere  statements  of  good-will 
towards  other  persons,  a  trust  will  not  be  implied:  Buggins  v.  Yeates,  8 
Vin.  Ab.  72,  PI.  27;  Sale  r.  Moore,  1  Sim.  534;  Hoy  v.  Master,  6  Sim. 
568;  Reeves  v.  Baker,  18  Beav.  372;  Lechmere  v.  Lavie,  2  My.  &  K.  197; 
Abraham  v.  Almon,  1  Russ.  509;  Harland  v.  Trigg,  1  Bro.  Ch.  142; 
Curtis  V.  Rippon,  5  Madd.  434.  But  where  a  testator  gave  property 
to  his  sou,  and  ordered  him  to  take  care-  and  provide  for  his  daughter,  it 
was  held  that  she  was  entitled  to  a  provision  :  Broad  v.  Bevan,  1  Russ. 
511,  n.  It  must  be  repeated,  that  in  many  cases  the  element  of  uncer- 
tainty as  to  the  property  to  be  affected  by  the  words  of  recommendation 
has  entered  largely  into  the  construction  given  to  wills  by  courts ;  and  in 
that,  as  in  most  other  circumstances  attending  the  construction  of  a  will, 
each  case  must  depend  upon  the  particular  words  of  the  will  and  the  context 
in  which  they  are  found.  See  Lefroy  v.  Flood,  4  Ir.  Ch.  1,  12;  Wynne 
V.  Hawkins,  1  Bro.  Ch.  179;  Horwood  v.  West,  1  Sim.  &  St.  387;  Huskis- 
son  V.  Bridge,  15  Jur.  738;  Young  v.  Martin,  2  Y.  &  C.  Ch.  582,  Ex 
parte  Payne,  Id.  636  ;  Knight  v.  Knight,  3  Beav.  148;  Knight  v.  Boughton, 

II  CI.  &  Fin.  .513;  12  Beav.  312;  Bonser  v.  Kinnear,  2  Gif.  195;  Quayle  v. 
Davidson,  12  Moore,  P.  C  268;  Maud  v.  Maud,  27  Beav.  615.  But  see 
Malone  v.  O'Connor,  2  Lloyd  &  Goold,  465.  Of  course,  if  no  trust  is 
implied  from  the  words  of  recommendation  used  in  the  will,  the  donee 

119 


§  113.]  IMPLIED   TEUSTS.  [CHAP.  IV. 

family  ;  "  ^  or,  with  a  request  "  to  distribute  it  among  such 
members  of  the  donee's  family  "  as  he  should  deem  most  de- 
serving ;2  or,  "in  full  confidence  that  the  donee  would  devise 
it  to  such  heirs  of  the  testator's  father  as  she  might  think  be.st 
deserved  a  preference  ; "  ^  or  with  a  recommendation  that  the 
donee  "  would  consider  the  testator's  relations  ; "  *  or,  where 
the  recommendation  was  "  to  consider  certain  persons,"  ^  "  to 
be  kind  to  them,"  ^  "  to  remember  them,"  ^  "  to  do  justice  to 
them,"  ^  "  to  make  ample  provision  for  them,"  ^  "  to  use  the 
property  for  herself  and  her  children,  and  to  remember  the 
church  of  God  and  the  poor,"i^  "to  give  what  should  remain 
at  his  death,  or  what  he  should  die  seized  or  possessed  of,"  "  or, 
"  to  finally  appropriate  as  he  pleases ; "  with  a  recommenda- 

takes  the  absolute  beneficial  as  well  as  legal  interest  to  the  extent  to 
which  it  is  limited.  Stubbs  u.  Sargon,  2  Keen,  255;  3  My.  &  Cr.  507; 
Gloucester  v.  Wood,  3  Hare,  131 ;  1  H.  L.  Gas.  272 ;  Briggs  v.  Penny,  3 
De  G.  &  S.  547;  3  Mac.  &  G.  546;  Fowler  v.  Garlike,  1  R.  &  My.  232. 
But  if  a  trust  is  intended,  but  it  is  so  uncertain  that  it  cannot  be  exe- 
cuted, it  will  result  to  the  heir  or  next  of  kin,  or  residuary  legatee  or 
devisee,  according  to  the  circumstances. 

1  Harland  v.  Trigg,  1  Bro.  Ch.  142;  Wright  v.  Atkyns,  19  Ves.  279; 
G.  Coop.  121 ;  Woods  v.  Woods,  1  M.  &  Cr.  401 ;  Parkinson's  Trust,  1 
Sim.  (n.  s.)  242;  Williams  v.  Williams,  Id.  358.  See  also  White  v.  Briggs, 
2  Phill.  583;  Liley  v.  Hey,  1  Hare,  580. 

2  Green  v.  Marsden,  1  Drew.  646. 

8  Meredith  v.  Heneage,  1  Sim.  542;  and  see  Wright  v.  Atkyns,  G.  Coop. 
119;  Curnick  v.  Tucker,  L.  R.  17  Eq.  320. 

4  Sale  V.  Moore,  1  Sim.  534;  Mcuab  v.  Whitbread,  17  Beav.  299; 
Wright  V.  Atkyns,  G.  Coop.  119. 

5  Ibid.;  Hoy  v.  Master,  6  Sim.  568. 

6  Buggins  V.  Yates,  9  Mod.  122. 

T  Bardswell  v.  Bardswell,  9  Sim.  319. 

8  Le  Maitre  v.  Bannister,  Pr.  Ch.  200,  and  note;  Pope  v.  Pope,  10 
Sim.  1. 

9  Winch  V.  Brutton,  14  Sim.  379;  Fox  v.  Fox,  27  Beav.  301. 

10  Curtis  V.  Rippon,  5  Madd.  434. 

"  Sprange  v.  Barnard,  2  Bro.  Ch.  585;  Green  v.  Marsden,  1  Drew.  646; 
Pushman  v.  Filliter,  3  Ves.  7;  Wilson  v.  Major,  11  Ves.  205;  Eade  v. 
Fade,  5  Madd.  118;  Wynne  u.  Hawkins,  1  Bro.  Ch.  179;  Lechmere  v. 
Lavie,  2  M.  &  K.  197;  Bland  v.  Bland,  2  Cox,  349;  Att'y-Gen,  v.  Hall, 
Fitzg.  314;  and  see  Meredith  v.  Heneage,  1  Sim.  542;  Tibbits  v.  Tibbits, 
19  Ves.  655;  Pope  v.  Pope,  10  Sim.  1. 

120 


CHAP.  IV,]  PRECATORY  WORDS.  [§  113. 

tioii  "  to  divide  among  certain  persons,"  ^  or,  "  to  divide  and 
dispose  of  the  savings,^  or  the  bulk  of  the  property ; "  ^  or, 
where  the  testator  "  recommends,  but  does  not  absolutely  en- 
join ;  "  *  or,  where  a  testator  gave  all  his  property  to  his  wife 
absolutely,  and  by  a  codicil,  in  the  form  of  a  letter  to  her,  said 
it  was  his  wish  "  that  she  should  have  everything,  using  her 
judgment  when  to  dispose  of  it  among  her  children,  but  that 
he  should  be  unhappy  if  he  thought  that  any  one  not  of  her 
family  should  be  the  better  for  what  he  felt  confidence  she 
would  so  well  dispose  of  ;  "  ^  or,  whei'e  everything  was  given 
to  a  "  wife  in  the  fullest  trust  and  confidence  reposed  in  her 
that  she  will  dispose  of  the  same  for  the  joint  benefit  of  her- 
self and  my  children,"  ^  or  where  an  estate  was  given  to  a 
wife,  •'  being  fully  satisfied  that  she  will  dispose  of  the  same, 
by  will  or  otherwise,  in  a  fair  and  equitable  manner  to  our 
united  relatives,  bearing  in  mind  that  my  relatives  are  in  bet- 
ter circumstances  than  hers ; " "  or,  where  all  the  testator's 
estate  was  given  to  his  wife,  recommending  her  "to  give  the 
same  to  his  children,  at  such  time  and  in  such  manner  as  she 
should  think  best ;  "  ^  or,  where  a  bequest  of  a  house  and  an 
annuity  was  made  to  a  niece,  for  the  support  of  herself  and 
her  nephews  and  nieces  whom  she  then  had  under  her  care, 
"  and  of  such  other  persons  as  she  from  time  to  time  might 
wish  and  request  to  be  members  of  her  family  ;  "  ^  or,  where 
property  was  given  to  a  daughter,  "  to  be  hers  forever,  to  be 
disposed  of  as  she  may  think  proper  among  her  children  and 
grandchildren,  by  will  or  otherwise  ;  "  ^^  or  a  devise  to  a  wife 
of  all  a  testator's  property,  recommending  her  "  to  make  some 
small  allowance,  at  her  convenience,  to  each  of  his  brothers 

1  White  V.  Briggs,  15  Sim.  33. 

^  Cowman  v.  Harrison,  10  Hare,  234. 

8  Palmer  v.  Simmonds,  2  Drew.  221. 

*  Young  V.  Martin,  2  Y.  &  C.  Ch.  582. 

6  Williams  v.  Williams,  1  Sim.  (n.  s.)  358. 

6  Webb  V.  Wools,  2  Sim.  (n.  s.)  267;  Byne  v.  Blackburn,  26  Beav.  41. 

■'  Reeves  v.  Baker,  18  Beav.  372. 

s  Gilbert  v.  Chapin,  19  Conn.  351. 

9  Harper  v.  Phelps,  21  Conn.  257. 

'0  Thompson  v.  McKisick,  3  Humph.  631. 

121 


§  114.]  IMPLIED   TRUSTS.  [CHAP.  IV. 

and  sisters  :  say,  11000  to  each  ; "  ^  or,  a  devise  "  of  the  use, 
benefit,  and  profits,  to  a  wife  absolutely,  having  full  confi- 
dence that  she  will  leave  the  surplus  to  be  divided  at  her 
decease  justly  among  her  children ; "  ^  or,  where  the  testator 
expressed  an  "earnest  hope  "and  "particular  request"  that 
"  the  donee  would  give  the  property  to  some  one  bearing  the 
family  name."^  In  a  case  where  A.  gave  property  to  B.  and 
directed  that  his  daughter  should  reside  with  and  be  main- 
tained by  B.,  and  she  resided  of  her  own  accord  in  another 
place,  it  was  held  that  there  was  no  implied  trust  for  her  if 
she  resided  in  another  place.* 

§  114.  It  is  an  easy  task  to  enumerate  cases  where  trusts 
have  been  implied  and  where  they  have  not  been  implied  ; 
but  it  is  difficult  to  reconcile  all  the  decisions.  The  words 
"  will,"  "  wish,"  "  request,"  "  hope,"  "  desire,"  "  trust,"  "  have 
confidence,"  "  recommend,"  "  not  doubting,"  and  other  simi- 
lar words  found  so  often  in  wills,  express  a  state  of  mind  in 
the  testator,  and  they  generally  operate  as  a  direct  gift,  devise, 
or  bequest ;  but  they  are  frequently  so  used  that  it  is  doubt- 
ful whether  they  are  absolute  directions,  or  mere  suggestions 
to  be  acted  on  or  not  according  to  the  discretion  of  the  donee. 
Every  case  must  depend  upon  the  construction  of  the  particu- 
lar will  under  consideration.^  The  point  really  to  be  deter- 
mined in  all  these  cases  is  whether,  looking  at  the  whole 
context  of  the  will,  the  testator  intended  to  impose  an  obliga- 
tion on  his  legatee  to  carry  his  wishes  into  eifect,  or  whether, 
having  expressed  his  wishes,  he  intended  to  leave  it  to  the 
legatee  to  act  on  them  or  not  at  his  discretion.  It  is  doubtful 
if  there  exist  any  formula  for  bringing  to  a  direct  test  the 
question,  whether  words  of  "  request,"  "  hope,"  or  "  recom- 
mendation," are  or  are  not  to  be  considered  obligatory.*^     The 

1  Ellis  V.  Ellis,  15  Ala.  296. 

2  Pennock's  Estate,  20  Pa.  St.  268;  reversing  Coate's  Appeal,  2  Barr, 
129,  and  McKonkey's  Appeal,  1  Harris,  253. 

8  Hood  V.  Oglander,  34  Beav.  513. 
*  Wilson  V.  Ball,  L.  R.  4  Ch.  581. 

5  Negroes  v.  Palmer,  18  Md.  165;  Meggison  v.  Moore,  2  Ves.  Jr.  633. 

6  Warner  v.  Bates,  98  Mass.  276;  Williams  v.  Williams,  1  Sim.  (n.  s.) 

122 


CHAP.  IV.]  PRECATORY    WORDS.  [§  114. 

most  that  can  be  done  is  to  state  a  few  general  rules  that  lead 
to  the  construction  of  particular  wills. 

358,  by  Sir  Knight  Bruce.  In  Wright  v.  Atkyns,  1  T.  &  R.  157,  Lord 
Eldou  said  that  in  order  to  determine  whether  the  words  create  a  trust  or 
not,  it  is  matter  of  observation,  —  first,  that  the  words  should  be  imperative ; 
secondly,  that  the  subject  must  be  certain ;  and  thirdly,  that  the  object 
must  be  as  certain  as  the  subject.  See  Wood  v.  Cox,  2  My.  &  Cr.  684; 
Pope  V.  Pope,  10  Sim.  1.  In  Knight  v.  Knight,  3  Beav.  148,  Lord  Lang- 
dale  said,  "  It  is  not  every  wish  or  expectation  which  a  testator  may  ex- 
press, nor  every  act  which  he  may  wish  his  successors  to  do,  that  can  or 
ought  to  be  executed  and  enforced  as  a  trust;  and  in  the  infinite  variety 
of  expressions  employed,  and  of  cases  which  arise,  there  is  often  the 
greatest  difficulty  in  determining  whether  the  act  desired  or  recommended 
is  an  act  which  the  testator  intended  to  be  executed  as  a  trust.  In  the 
construction  of  wills  it  is  the  duty  of  the  court  to  give  effect  to  the  inten- 
tion of  the  testator,  whenever  it  can  be  ascertained."  Then,  after  stating 
that  in  decreeing  trusts  wills  have  been  made  rather  than  executed,  and 
that  caution  is  necessary,  his  lordship  goes  on  to  say,  "that  as  a  gen- 
eral rule  it  has  been  laid  down  that  when  property  is  given  absolutely  to 
any  person,  and  the  same  person  is  by  the  giver,  who  has  power  to  com- 
mand, recommended  or  entreated  or  wished  to  dispose  of  the  property  in 
favor  of  another,  the  recommendation  or  entreaty  or  wish  shall  be  held  to 
ci-eate  a  trust:  first,  if  the  words  are  so  used  that,  upon  the  whole,  they 
ought  to  be  construed  as  imperative;  secondly,  if  the  subject  of  the  wish 
be  certain;  and,  thirdly,  if  the  objects  or  persons  intended  to  have  the 
benefitof  the  recommendation  or  wish  be  also  certain."  Same  case  under 
the  name  of  Knight  v.  Boughton,  11  CI.  &  Fin.  548. 

The  learned  editors  to  Hill  on  Trustees,  p.  73  (4th  Am.  ed.),  have  ex- 
amined the  American  and  English  cases,  and  state  the  following  rules, 
which  seem  to  be  fairly  deducible  from  the  adjudged  cases:  — 

1.  Precatory  words  in  a  will,  equally  with  direct  fiduciary  expressions, 
will  create  a  trust;  the  wish  of  a  testator,  like  the  I'equest  of  a  sovereign, 
is  equivalent  to  a  command. 

2.  Discretionary  expressions  which  leave  the  application  or  non-applica- 
tion of  the  subject  of  the  devise  to  the  objects  contemplated  by  the  testator 
entirely  to  the  caprice  of  the  devisee,  will  prevent  a  trust  from  attach- 
ing; but  a  mere  discretion  in  regard  to  the  method  of  application  of 
the  subject,  or  the  selection  of  the  object,  will  not  be  inconsistent  with  a 
trust. 

3.  Precatory  words  will  not  be  construed  to  confer  an  absolute  gift  on 
the  first  taker,  merely  because  of  failure  or  uncertainty  in  the  object  or 
subject  of  the  devise. 

4.  But  failure  or  uncertainty  will  be  an  element  to  guide  the  court  in 
construing  words  of  doubtful  significancy  adversely  to  a  trust. 

123 


§  116.]  IMPLIED   TRUSTS.  [CHAP.  IV. 

§  115.  However  strong  the  language  of  recommendation 
or  request  may  be,  a  trust  will  not  be  implied  if  the  testator 
declare  that  such  is  not  his  intention,  as  if  he  declares  that 
the  gift  shall  be  "  unfettered  or  unlimited,"  or  if  he  "  recom- 
mends but  does  not  enjoin."  ^  And  so  a  trust  will  not  be 
implied  if  such  a  construction  of  the  precatory  words  would 
render  them  repugnant  to,  or  inconsistent  w^ith,  other  parts 
of  the  same  instrument.^  If  construing  a  recommendation 
or  the  expression  of  a  wish  into  a  trust  would  contradict 
in  terms  the  preceding  bequest,  a  trust  will  not  be  implied.^ 
As  if  the  gift  is  absolute,  and  of  all  the  testator's  property, 
and  of  both  the  legal  and  equitable  interest  in  it,  words  of 
recommendation  will  not  cut  it  down  into  a  trust;  or,  in 
the  words  of  Kindersley,  V.  C,  "  where  the  later  words  of 
a  sentence  in  a  will  go  to  cut  down  an  absolute  gift  con- 
tained in  the  first  part  of  a  sentence,  and  are  inconsistent 
wath  such  gift,  the  court  will,  if  it  can,  give  effect  to  the 
absolute  gift."  *  The  same  rule  was  stated  by  Lord  Cotten- 
ham  thus  :  "  Though  '  recommendation '  may  in  some  cases 
amount  to  a  direction  and  create  a  trust,  yet  that  being  a 
flexible  term,  if  such  a  construction  of  it  be  inconsistent  with 
any  positive  provision  in  the  will,  it  is  to  be  considered  as  a 
recommendation  and  nothing  more."  ^  The  flexible  term 
must  give  way  to  the  inflexible,  if  the  two  cannot  stand 
together  as  they  are  expressed. 

§  116.  Again,  a  trust  will  not  be  implied  from  precatory 
words  where  it  would  be  impracticable  for  a  court  to  deal 

1  Meredith  v.  Heneage,  1  ^im.  543;  10  Price,  230;  Hoy  v.  Master,  6 
Sim.  568;  Young  v.  Martin,  2  Y.  &  C.  Ch.  582;  Huskisson  v.  Bridge,  4 
De  G.  &  Sm.  245;  Warner  v.  Bates,  98  Mass.  277;  Whipple  i-.  Adam,  1 
Met.  444;  Eaton  v.  Witts,  L.  R.  4  Eq.  151;  Barrett  v.  Marsh,  126  Mass. 
213. 

2  Brunson  v.  Hunter.  2  Hill,  Ch.  490;  Knott  v.  Cottee,  2  Phill.  192. 

3  Webb  V.  Wools,  2  Sim.  (n.  s.)  267;  Bardswell  v.  Bardswell,  9  Sim. 
819. 

*  Webb  V.  Wools,  2  Sim.  (n.  s.)  267;  Van  Duyne  v.  Van  Duyne,  1 
McCarter,  397. 

6  Knott  V.  Cottee,  2  PhUl.  192;  Second,  &c.  Church  v.  Desbrow,  52  Pa. 
St.  219. 

124 


CHAP.  IV.]  PRECATORY    WORDS,  [§  116. 

with  and  execute  it ;  as  if  a  testator  should  devise  a  house  to 
his  wife,  and  express  a  wish  that  his  sister  should  live  with 
her,  for  the  sister  takes  no  interest  in  the  house,  and  a  court 
cannot  decree  two  persons  to  live  together.^  So  where  a  tes- 
tator devised  a  dwelling-house  and  an  annuity  to  a  niece, 
for  the  support  of  herself  and  her  nephews  and  nieces  then 
living  with  her,  and  of  such  other  persons  as  she  from  time 
'to  time  might  request  to  be  members  of  her  family .^  Nor 
will  a  trust  be  implied  if  there  is  uncertainty  as  to  the  prop- 
erty to  be  subjected  to  the  trust,^  or  as  to  the  persons  to  be 
benefited  by  the  trust,^  or  as  to  the  manner  in  which  the 
property  is  to  be  applied.  Lord  Alvanley  stated  the  rule  to  be 
"  that  a  trust  would  be  implied  only  where  the  testator  points 
out  the  objects,  the  property,  and  the  way  in  which  it  shall 
go."  ^  If  the  subjects  and  objects  of  the  supposed  trust  are 
left  uncertain  by  a  testator,  the  court  will  infer  that  no  obli- 
gation was  intended  to  be  imposed  upon  the  donee,  but  that 
the  whole  disposition  was  left  to  his  discretion.^  So  if  a  mere 
'power  to  appoint  is  given  to  the  first  taker,  to  be  exercised  or 

1  Graves  v.  Graves,  13  Ir.  Ch.  182;  Hood  v.  Oglander,  34  Beav.  513. 

2  Harper  v.  Phelps,  21  Conn.  257. 

3  Lechmere  v.  Lavie,  2  M.  &  K.  197,  Knight  v.  Knight,  3  Beav.  148; 
Meredith  v.  Heneage,  1  Sim.  556;  Buggins  v.  Yates,  9  Madd.  122;  Sale  v. 
Moore,  1  Sim.  534;  Anon.  8  Vin.  72;  Tibbits  v.  Tibbits,  19  Ves.  655; 
Wynne  v.  Hawkins,  1  Bro.  Ch.  179;  Pierson  v.  Garnet,  2  Bro.  Ch.  45, 
230;  Bland  v.  Bland,  2  Cox,  349;  Le  Maitre  v.  Bannister,  and  Eales  v. 
England,  Pr.  Ch.  200;  Sprange  v.  Barnard,  2  Bro.  Ch.  585;  Pushman  v. 
Filliter,  3  Ves.  7;  Attorney-General  v.  Hall,  Fitzg.  314;  Wilson  r.  Major, 
11  Ves.  205;  Eade  v.  Eade,  5  Madd.  118;  Curtis  v.  Rippon,  Id.  4.34;  Rus- 
sell V.  Jackson,  10  Hare,  218;  Knight  v.  Boughton,  11  CI.  &  Fin.  513; 
Flint  V.  Hughes,  6  Beav.  342;  Lines  v.  Darden,  5  Fla.  51. 

4  Harland  v.  Trigg,  1  Bro.  Ch.  142;  Wynne  v.  Hawkins,  Id.  170;  Tib- 
bits V.  Tibbits,  19  Ves.  655;  Richardson  v.  Chapman,  1  Burns,  Ecc.  L. 
245;  Pierson  y.  Garnet,  2  Bro.  Ch.  45,  2-30;  Knight  v.  Knight,  3  Beay. 
148;  Sale  v.  Moore,  1  Sim.  534;  Cary  v.  Cary,  2  Sch.  &  Le.  189  ;  Mere- 
dith V.  Heneage,  1  Sim.  542  ;  Ex  parte  Payne,  2  Y.  &  C.  Ch.  636;  Knight 
V.  Boughton,  11  CI.  &  Fin.  513;  Lines  v.  Darden,  5  Fla.  51. 

6  Malim  v.  Keighley,  2  Ves.  Jr.  335 ;  Knight  v.  Boughton,  11  CI.  &  Fin. 
548 ;  Warner  v.  Bates,  98  Mass.  277  ;  Whipple  v.  Adams,  1  Met.  444. 
8  Morice  v.  Bishop  of  Durham,  10  Ves.  536. 

125 


§  117.]  IMPLIED   TKUSTS.  [CHAP.  IV. 

not  at  his  discretion,  no  trust  will  be  implied.^  And  no  trust 
will  be  implied,  if,  taking  the  whole  instrument  and  all  the 
circumstances  together,  it  is  more  probable  than  otherwise 
that  the  testator  intended  to  communicate  a  discretion  and 
not  an  obligation.^ 

§  117.  There  is  another  variety  of  cases,  where  trusts  are 
sometimes  implied  from  the  words  used,  though  an  express 
trust  is  not  declared,  as  where  property  is  given  to  a  parent 
or  other  person  standing  in  the  relation  of  parent,  and  some 
directions  or  expressions  are  used  in  regard  to  the  mainte- 
nance of  his  family  or  children.  The  question  to  be  decided 
in  this  class  of  cases  is,  as  in  the  others,  did  the  settlor  in- 
tend to  create  a  trust  and  impose  an  obligation,  or  did  he 
merely  state  incidentally  the  motive  which  led  to  an  absolute 
gift?^  In  the  following  cases  a  trust  was  clearly  implied  by 
the  court ;  where  property  was  given,  that  "  he  may  dispose 
thereof  for  the  benefit  of  himself  and  children,"  *  or,  "  for 
his  own  use  and  benefit,  and  the  maintenance  and  education 
of  his  children,"  ^  "  for  the  maintenance  of  himself  and  fam- 
ily," ^  "  for  the  purpose  of  raising,  clothing,  and  educating " 
the  children  of  the  legatee,^  "  at  the  disposal  of  the  legatee  for 
herself  and  her  children,"  ^  or  "  all  overplus  towards  her  sup- 


1  Brook  V.  Brook,  3  Sm.  &  Gif .  280 ;  Paul  v.  Compton,  8  Ves.  380 ; 
Howoith  V.  Dewell,  29  Beav.  18;  Lines  v.  Darden,  5  Fla.  51. 

2  Bull  V.  Hardy,  1  Ves.  Jr.  270;  Knott  v.  Cottee,  2  Phill.  192;  Knight 
V.  Knight,  3  Beav.  174;  11  CI.  &  Fin.  513;  Meggison  v.  Moore,  2  Ves.  Jr. 
630;  Hill  v.  Bishop,  &c.,  1  Atk.  618  ;  Paul  v.  Compton,  8  Ves.  380;  Lefroy 
V.  Flood,  4  Ir.  Ch.  1 ;  Shepherd  v.  Nottidge,  2  Johns.  &  Hem.  766. 

3  Paisley's  App.,  70  Pa.  St.  158. 

*  Raikesr.  Ward,  1  Hare,  445;  Whiting  v.  Whiting,  4  Gray,  240. 

*  Longman  i'.  Elcum,  2  Y.  &  C.  Ch.  369;  Carr  v.  Living,  28  Beav.  644; 
Berry  v.  Briant,  2  Dr.  &  Sm.  1 ;  Bird  r.  Maybury,  33  Beav.  351 ;  Andrews 
V.  Bank  of  Cape  Ann,  3  Allen,  313. 

6  In  re  Robertson's  Trust,  6  W.  R.  405;  Whelan  r.  Reilly,  3  W.  Va. 
597;  Smith  v.  Wildman,  37  Conn.  387. 

''  Rittgers  v.  Rittgers,  56  Iowa,  218. 

8  Crockett  v.  Crockett,  1  Hare,  451 ;  2  Phill.  461 ;  Bibby  v.  Thompson, 
32  Beav.  646. 

126 


CHAP.  IV.]  MAINTENANCE.  [§  HJ. 

port  and  her  family,"  ^  or  to  "  A.  for  the  education  and  ad- 
vancing in  life  of  her  children."  ^  In  Byne  v.  Blackburn,  it 
was  held  tliat  the  fact  that  the  property  was  given  to  a  trus- 
tee instead  of  to  the  parent  was  sufficient  to  show  that  no 
sub-trust  was  intended ;  ^  but  this  case  is  in  conflict  with  other 
cases ;  *  and  in  Chase  v.  Chase,  where  property  was  given  to 
trustees  "  to  pay  the  income  yearly  to  a  son  for  the  support  of 
himself  and  family  and  the  education  of  his  children,"  it  was 
held  that  the  income  was  taken  in  trust  by  the  son  as  sub- 
trustee,  and  that  the  wife  and  children  could  in  equity  enforce 
its  appropriation  in  part  for  their  support.^     Where  a  testator 

1  Woods  V.  Woods,  1  M.  &  Cr.  401. 

2  Gilbert  v.  Bennett,  10  Sim.  371. 
*  Byne  v.  Blackburn,  26  Beav.  41. 

4  Gilbert  v.  Bennett,  10  Sim.  371;  Longman  v.  Elcum,  2  Y.  &  C.  Ch. 
363 ;  Carr  v.  Living,  28  Beav.  644. 

s  Cole  V.  Littlefield,  35  Me.  43.5;  Loring  v.  Loring,  100  Mass.  340; 
Wilson  V.  Bell,  L.  R.  4  Ch.  581 ;  Whiting  v.  Whiting,  4  Gray,  240;  Chase 
V.  Chase,  2  Allen,  101.  In  this  case  Chief-Justice  Bigelow  said:  "The 
intent  of  the  testator  to  give  the  benefit  of  the  income  of  the  trust  fund 
created  by  his  will  to  the  wife  and  children  of  his  son  Philip,  as  well  as 
to  his  son,  is  clear  and  unequivocal.  It  was  intended  for  their  joint  sup- 
port, and  for  the  education  of  the  children.  The  only  question  arising 
on  the  construction  of  the  will  is,  whether  the  income  of  the  trust  fund, 
when  received  by  the  son,  is  held  absolutely  by  him  to  be  disposed  of  at 
his  discretion,  or  whether  he  takes  it  in  trust  so  that  the  wife  and  children 
can  seek  to  enforce  its  due  appropriation,  in  part  for  their  benefit,  in  a 
court  of  equity.  We  cannot  doubt  that  the  latter  is  the  true  construction ; 
otherwise  it  would  be  in  the  power  of  the  son  to  defeat  the  purpose  of  the 
testator,  by  depriving  his  family  of  the  support  and  education  which  was 
expressly  provided  for  by  the  will.  The  adjudicated  cases  recognize  the 
rule  that  where  income  arising  from  property  is  left  to  a  person  for  the 
maintenance  of  children,  he  will  be  entitled  to  receive  it  for  that  purpose 
only  so  long  as  he  continues  properly  to  maintain  them.  It  can  make  no 
difference  in  the  application  of  the  principle,  that  the  person  who  is  to 
receive  the  income  also  takes  a  beneficial  interest  in  it  for  his  own  sup- 
port. He  is  not  thereby  authorized  to  appropriate  the  whole  of  it  to  his 
own  use,  and  deprive  the  other  beneficiaries  of  the  share  to  which  they 
are  entitled.  Hadow  v.  Hadow,  9  Sim.  438;  Jubber  v.  Jubber,  Id.  503; 
Longraore  v.  Elcum,  2  Y.  &  C.  Ch.  363;  Leach  v.  Leach,  13  Sim.  304; 
Hart  V.  Tribe,  19  Beav.  149;  Raikes  v.  Ward,  1  Hare,  445;  Crockett  v. 
Crockett,  2  Phill.  553."     Babbitt  v.  Babbitt,  26  N.  J.  Eq.  44. 

127 


§  117.]  IMPLIED    TRUSTS.  [CHAP.  IV, 

gave  his  wife  the  entire  profit  of  his  estate  for  life,  "  intrust- 
ina:  to  her  the  education  and  maintenance  of  his  children," 
and  also  providing  for  the  education  and  maintenance  of 
the  children  "  out  of  the  profits  "  of  the  estate,  it  was  held 
that  the  widow  was  charged  with  the  trust  of  educating 
and  supporting  the  children ;  ^  and  where  a  legacy  was  given 
to  a  wife  to  be  applied  to  the  maintenance  of  certain  persons 
in  such  proportions  and  at  such  times  as  she  should  think 
proper,  it  was  held  to  be  an  imperative  trust.^  Where  a  tes- 
tator gave  to  his  wife  all  his  personal  property  for  her  benefit 
and  support  and  the  benefit  of  his  son,  it  was  held  to  be  a 
trust  in  the  widow,  the  income  of  one  half  for  her  own  benefit 
and  of  the  other  half  for  the  support  of  the  son.^     A  trust  for 

1  Lucas  V.  Lockhart,  10  Sm.  &  Mar.  468.     See  also  Hunter  v.  Stem- 
bridge,  12  Ga.  192;  Withers  v.  Yeadon,  1  Rich.  Eq.  324. 

2  Hawley  v.  James,  5  Paige,  318. 

8  Loring  v.  Loring,  100  Mass.  340;  Jubber  v.  Jubber,  9  Sim.  503. 
When  a  testator  has  stated  the  motive  which  leads  to  the  gift,  the  inquiiy 
arises,  is  the  motive  or  purpose  of  the  gift  so  stated  that  the  donee  is 
under  an  obligation  to  apply  the  gift,  or  any  part  of  it,  to  the  benefit  of 
another  person?  There  are  three  classes  of  cases:  (1)  When  a  complete 
and  obligatory  trust  is  created  in  the  first  donee ;  as  a  gift  to  A.  "  to 
'dispose  of  among  her  children,"  or  for  bringing  up  her  children,  gives  no 
interest  to  A.,  but  creates  a  complete  trust.  Blakeney  v.  Blakeney,  6  Sim. 
52;  Pilcherv.  Randall,  9  Week.  R.  251;  Taylor  v.  Bacon,  8  Sim.  100; 
Chambers  v.  Atkins,  1  Sim.  &  St.  382;  Fowler  v.  Hunter,  3  Y.  &  Jer.  506; 
In  re  Comae's  Trust,  12  Jur.  470;  Barnes  v.  Grant,  26  L.  J.  Ch.  92; 
Jubber  v.  Jubber,  9  Sim.  503;  Wetherell  v.  Wilson,  1  Keen,  80;  Wilson  t;. 
Maddison,  2  Y.  &  C.  Ch.  372;  Re  Harris,  7  Exch.  344  ;  Whiting  v.  Whit- 
ing, 4  Gray,  420;  Chase  v.  Chase,  2  Allen,  101;  Cole  v.  Littlefield,  35  Me. 
439;  Wright  v.  Miller,  8  N.  Y.  9.  (2)  There  is  a  large  class  of  cases 
•where  the  first  donee  has  a  discretion  to  apply  a  part  or  the  whole  of  the 
gift  to  a  third  person.  This  discretion,  if  exercised  in  good  faith,  will 
not  be  interfered  with  by  the  court,  and  the  property  unapplied  by  the 
donee  will  belong  beneficially  to  him.  Thus  in  Hornby  v.  Gilbert,  Jac. 
351,  where  a  gift  was  made  to  A.,  to  be  laid  out  and  expended  by  her  at 
her  disci-etion,  for  or  towards  the  education  of  her  son,  and  that  she 
should  not  be  liable  to  account  to  her  son  or  any  other  person,  it  was  held 
that  the  property  belonged  to  her  beneficially,  subject  to  a  trust  to  apply 
a  part  to  the  education  of  the  son  during  his  minority.  And  so  where 
income  is  given  for  life,  to  be  applied  to  the  education  and  maintenance 
of  children  in  the  discretion  of  the  donee,  the  income  must  be  paid  to  the 
128 


CHAP.  IV.]  MAINTENANCE.  [§  117. 

support  is  not  void  for  uncertainty,  as  the  amount  required  to 
furnish  maintenance  suitable  to  the  station  of  the  centui  can 
be  ascertained  with  reasonable  certainty.^ 

person  named,  and  the  part  unexpended  belongs  to  such  person  benefi- 
cially. Gilbert  v.  Bennett,  10  Sim.  371;  Hadow  v.  Hadow,  9  Sim.  438; 
Leach  v.  Leach,  13  Sim.  304;  Brown  v.  Paul,  1  Sim.  (n.  s.)  92;  Bowden 
V.  Laing,  14  Sim.  113;  Longmore  v.  Elcum,  2  Y.  &  C.  Ch.  363.  And  if 
the  interest  or  income  of  legacies  to  the  children  is  given  to  a  parent,  to 
be  applied  to  the  maintenance  and  education  of  the  children,  the  parent 
will  take  the  surplus  beneficially  if  he  performs  his  duty,  unless  a  contrary 
intention  is  expressed:  and  providing  for  other  trustees  in  case  of  the 
parent's  death  does  not  indicate  a  contrary  intention.  Brown  v.  Paul,  1 
Sira.  (x.  s  )  103.  Sometimes  the  gifts  to  a  parent  are  so  expressed  that 
the  parent  takes  the  property  in  trust,  subject  to  a  large  discretion  ;  and 
sometimes  the  parent  takes  the  property  for  life,  subject  to  a  power  of 
appointment  for  the  children.  The  latter  construction  is  the  more  favored 
by  the  courts.  See  Crockett  v.  Crockett,  2  Phill.  553;  Gully  v.  Cregoe,  24 
Beav.  185;  Hart  v.  Tribe,  18  Beav.  215;  Ware  v.  Mallard,  21  L.  J.  Ch. 
355,  16  Jur.  492.  In  Raikes  v.  Ward,  1  Hare,  445,  a  gift  was  made  to  a 
wife  "  to  the  intent  she  may  dispose  of  the  same  for  the  benefit  of  herself 
and  our  children  as  she  may  deem  most  advantageous,"  and  the  court 
determined  that  the  children  had  no  absolute  interest,  but  that  their  inter- 
ests were  subject  to  her  honest  discretion.  Connolly  v.  Farrell,  8  Beav. 
347;  Woods  u.  Woods,  1  My.  &  Cr.  401;  Costababie  v.  Costababie,  6 
Hare,  410;  Cowman  v.  Harrison,  10  Hare,  284;  Smith  v.  Smith,  2  Jur. 
(n.  s.)  967;  Cooper?;.  Thornton,  3  Bro.  Ch.  96;  Robinson  v.  Tickell,  8 
Ves.  142;  Wood  v.  Richardson,  4  Beav.  174;  Pratt  v.  Church,  Id.  177. 
(3)  The  third  class  of  cases  contains  those  in  which  it  is  held  that  the 
primary  donee  is  absolutely  entitled  to  the  whole  interest  given,  with- 
out any  rights  in  third  persons,  as  in  Brown  v.  Casamajor,  4  Ves.  498, 
where  a  legacy  was  given  to  a  father  "the  better  to  enable  him  to 
provide  for  his  children."  These  and  similar  words  merely  express 
the  motive  of  the  gift,  but  import  or  imply  no  obligation  or  discretion 
which  courts  can  enforce  or  control.  Hammond  i'.  Neame,  1  Swanst.  35; 
Benson  v.  Whittam,  5  Sim.  22;  Thorp  v.  Owen,  2  Hare,  607;  Andrews 
V.  Partington,  3  Bro.  Ch.  60.  See  also  Biddies  v.  Biddies,  16  Sim. 
1;  Berkley  v.  Swinbourne,  6  Sim.  613;  Oakes  v.  Strachy,  13  Sim. 
414 ;  Leigh  v.  Leigh,  12  Jur.  907 ;  Jones  v.  Greatwood,  16  Beav.  528 ; 
Hart  u.  Tribe,  18  Beav.  215;  Wheeler  v.  Smith,  1  Giff.  300.  It  may 
be  said  that  latterly  courts  are  not  so  astute  to  discover  and  enforce 
trusts  from  precatory  words,  and  are  more  inclined  to  find  in  the  words 
the  mere  statement  of  a  motive,  or  the  vesting  of  a  discretion  in  the 
donee. 

1  Johnson  v.  Billups,  23  W.  Va.  685. 

VOL.  I.— 9  129 


§  118.]  IMPLIED   TEUSTS.  [CHAP.  IV. 

§  118.  In  cases  where  a  trust  for  the  maintenance  of  chil- 
dren is  implied,  the  person  bound  by  the  trust  is  regarded  in 
the  same  light  as  the  guardian  of  a  lunatic  or  of  a  minor  :  ^ 
he  is  entitled  to  receive  the  fund,  and  can  give  a  valid  receipt 
for  it ;-  and,  so  long  as  he  discharges  the  trust  imposed  upon 
him,  he  is  entitled  to  the  surplus  for  his  own  benefit,  nor  is 
he  obliged  to  account  for  the  past  application  of  the  fund.^ 
And  the  future  application  is  very  much  according  to  his 
discretion,  provided  he  educates  and  supports  the  children 
reasonably,  according  to  their  position  in  the  world  and  the 
intention  of  the  testator.^  The  court,  in  cases  where  a  ques- 
tion is  raised,  will  order  payment  to  be  made  to  him,  with 
liberty  to  the  wife  and  children  to  apply  for. further  orders;^ 
if  he  becomes  unfit  to  educate  the  children,  the  court  can 
apportion  the  fund,  and  prevent  him  from  receiving  the  por- 
tion necessary  for  the  children  and  family  ;^  and  if  he  assigns 
his  interest  in  the  fund,  the  court  can  apportion  it,  and  set 
apart  what  is  needed  for  the  support  and  education  of  the 
children,  and  give  the  remainder  to  his  assignee.'  Of  course, 
if  there  are  no  children,  or  if  they  die,  the  person  bound  by 
the  trust  takes  the  whole  benefit  of  the  fund.^  But  if  the 
devisee  die  before  the  children,  the  trust  remains  for  them.® 
The  trust  also  ceases  as  to  children  who  become  forisfamili- 

1  Jodrell  V.  Jodrell,  14  Beav.  411. 

2  Woods  V.  Woods,  1  M.  &  Cr.  409;  Raikes  v.  Ward,  1  Hare,  449; 
Cooper  V.  Thornton,  3  Bro.  Ch.  186  ;  Robinson  r.  Tickell,  S  A'es.  142  ; 
Crockett  y.  Crockett,  1  Hare,  451;  2  Phill.  553;  Webb  v.  Wools,  2  Sim. 
(n.  s.)  272. 

3  Leach  v.  Leach,  13  Sim.  304;  Brown  i'.  Paul,  1  Sim.  (n.  s)  92;  Carr 
V.  LivinsT,  28  Beav.  644 ;  Hora  v.  Hora,  33  Beav.  8^  ;  Smith  v.  Smith,  11 
Allen,  423 ;  Berkley  v.  Swinbourne,  6  Sim.  613  ;  Hadow  v.  Hadow,  9  Sim. 
438. 

*  Raikes  n.  Ward,  1  Hare,  450. 

5  Hadow  V.  Hadow,  9  Sim.  138;  Crockett  r.  Crockett,  1  Hare,  451. 

6  Chase  v.  Chase,  2  Allen,  101 ;  Castle  v.  Castle,  1  De  G.  &  Jon.  352. 
'  Chase  v.  Chase,  2  Allen,  101 ;  Carr  v.  Livinp:,  2  Beav.  644. 

8  Hammond  v.  Neame,  1  Swanst.  35  ;  Capew.  Cape,  2  Y.  &  C.  Ex.  548; 
Bushnell  v.  Parsons,  Pr.  Ch.  219;  Bowditch  v.  Andrew,  8  Allen,  339; 
Smith  V.  Smith,  11  Allen,  423. 

^  Andrews  v.  Cape  Ann  Bank,  3  Allen,  313. 

130 


CHAP.  IV.]  MAINTENANCE.  [§  118. 

ated,  or  cease  to  be  members  of  the  trustee's  family,  and,  by 
marriage  or  otherwise,  become  members  of  another  home  or 
establishment ;  for  it  would  not  generally  be  implied  that  a 
testator  intended  ^  an  income  for  the  support  and  education 
of  his  family  to  be  divided  up  into  as  many  families  as  he  left 
children.2  Whether  a  child's  right  to  maintenance  under 
such  a  will  ceases  by  the  fact  of  his  attaining  twenty-one 
years  of  age  is  in  many  cases  an  open  question.^  On  the  one 
side  it  may  be  said  that  the  trust  ought  not  to  continue 
after  the  child  is  of  age,  and  is  educated  and  prepared  to 
acquire  a  livelihood  for  himself.*  On  the  other  hand,  if  the 
child  is  willing  to  remain  at  home,  and  there  is  no  reasonable 
objection  to  his  so  remaining,  or  if  it  is  a  female  with  no 
other  protection  and  means  of  support,  it  would  seem  that 
the  trust  ought  not  to  cease  on  the  mere  ground  that  the 
child  has  attained  twenty-one.^  The  great  majority  of  cases 
will,  of  course,  depend  upon  the  particular  words  used  in  the 
particular  will,  and  they  will  be  so  construed  by  the  court  as 
to  carry  out  the  intentions  of  the  testator.*^  If  a  trust  is  to  a 
widow  for  life  for  the  support  of  herself  and  the  support  and 
education  of  her  children,  and  the  property  is  to  go  to  them 
absolutely  upon  her  death,  one  of  them,  on  coming  of  age, 
cannot  call  for  his  proportion,  even  with  the  concurrence  of 
the  widow,  if  such  transfer  would  so  diminish  the  fund  as  to 
endanger  the  rights  of  the  other  children  to  support  and  edu- 
cation during  the  life  of  the  widow.     In  such  case  the  court 

1  Bowden  v.  Laing,  14  Sim.  113 ;  Carr  v.  Living,  28  Beav.  614 ;  33 
Beav.  4G4  ;  Thorp  v.  Owen,  2  Have,  612;  Longmore  v.  Elcum,  2  Y.  &  C. 
Ch.  370;  Manning  v.  Wopp,  2  Dev.  &  Bat.  Ch.  11 ;  Smith  v.  Wildman, 
37  Conn.  387  ;  Gardner  v.  Barker,  2  Eq.  R.  888,  overruling  Soames  v. 
Martin,  10  Sira.  287;  Bayne  v.  Crowther,  20  Beav.  400;  Brocklebauk  v. 
Johnson,  29  Beav.  211  ;  Badham  v.  Mee,  1  R.  &  M.  631. 

2  Ibid. ;  Baker  v.  Reel,  4  Dana,  158  ;  Connolly  v.  Farrell,  8  Beav.  3.50; 
citing  Camden  v.  Benson,  Crockett  v.  Crockett,  1  Hare,  457  ;  5  Hare,  326. 

8  Ibid. 

4  McDonnell  v.  Black,  Riley,  Ch.  1.52. 

6  Ibid.  ;  Cloud  v.  Martin,  2  Dev.  &  Bat.  Ch.  274;  Carr  v.  Living,  33 
Beav.  4Gk 

"  Gardner  v.  Barker,  18  Jur.  508;  Bowditch  v.  Andrew,  8  Allen,  339; 
Sargent  v.  Bourne,  6  Met.  32. 

131 


§  119.]  IMPLIED  TRUSTS.  [CHAP.  IV. 

has  ordered  a  part  of  such  child's  share  to  be  paid  over  on 
his  undertaking  to  account  for  the  income  if  needed,  and  on 
the  footing  that  the  residue  should  be  retained  for  security, 
that  the  income  should  be  paid  over  if  required.^  The  chil- 
dren hare  such  an  interest  in  the  fund  given  for  their  mainte- 
nance that  it  cannot  be  reached  by  a  creditor's  bill  or  trustee 
process  against  the  parent  or  other  person  charged  with  the 
obligation  of  maintaining  the  children  or  family ;  that  is,  if 
the  fund  is  given  to  a  person  for  a  particular  purpose,  it 
cannot  be  diverted  from  that  purpose  by  creditors  of  the 
donee.^ 

§  119.  But  no  trust  is  implied  where  the  words  simply 
state  the  motive  leading  to  the  gift,  as  where  the  gift  is  to 
a  person  "  to  enable  him  to  maintain  the  children,"  ^  or  an 
absolute  gift  is  made,  and  the  motive  stated  "  that  he  may 
support  himself  and  children,"  *  or  a  gift  is  made  absolutely 
for  her  own  use  and  benefit,  "  having  full  confidence  in  her 
sufficient  and  judicious  provision  for  the  children."  ^  "When 
a  testator  gave  to  his  wife  "  the  use,  benefit,  and  profits  of  his 
real  estate  for  life,  and  all  his  personal  estate,  absolutely, 
having  full  confidence  that  she  will  leave  the  surplus  to  be 
divided  justly  among  my  children,"  it  was  held  that  the 
widow  took  the  personal  estate  absolutely  subject  to  no  trust, 
and  that  the  word  "  surplus "  meant  what  was  left  uncon- 
sumed  or  undisposed  of  by  her.^     And  it  may  be  added  that 

1  Berry  v.  Briant,  2  Dr.  &  Sm.  1. 

2  Bramhall  v.  Ferris,  14  N.  Y.  44 ;  White  v.  White,  30  Vt.  342 ;  Rife 
V.  Geyer,  59  Pa.  St.  393 ;  Wells  v.  McCall,  64  Pa.  St.  207 ;  Clute  v.  Bool, 
8  Paige,  83  ;  Doswell  v.  Anderson,  1  P.  &  H.  (Va.)  185. 

3  Benson  i\  Whittam,  5  Sim.  22;  Leach  v.  Leach,  13  Sim.  304;  Burt  v. 
Herron,  66  Pa.  St.  400;  Rhett  v.  Mason,  18  Grat.  541  ;  Burke  v.  Valen- 
tine, 52  Barb.  412. 

4  Thorp  V.  Owen,  2  Hare,  607. 

5  Fox  V.  Fox,  27  Beav.  301 ;  Sears  v.  Cunningham,  122  Mass.  538 ; 
Barrett  v.  Marsh,  126  Mass.  213. 

^  Pennock's  Estate,  20  Pa.  St.  268,  overruling  the  opinions  in  Coate's 
Appeal,  2  Barr,  129,  and  in  McKonkey's  Appeal,  1  Harris,  253;  cases 
upon  the  same  will  under  other  names.     And  see  Paisley's  App.,  70  Pa. 

132 


CHAP,  IV.]  MAINTENANCE.  [§  119. 

the  mere  expression  of  a  purpose  for  which  a  gift  is  made 
does  not  render  the  purpose  obligatory.  Even  if  the  purpose 
of  the  gift  was  to  benefit  the  donee  solely,  he  can  claim  the 
gift  without  applying  it  to  the  purpose  named,  whether  the 
expression  be  obligatory  in  form  or  not.  Thus  if  a  gift  be 
made  to  a  person  to  purchase  a  ring,^  or  an  annuity ,2  or  a 
house,^  or  to  set  him  up  in  business,*  or  for  his  maintenance 
and  education,^  or  to  bind  him  apprentice,^  or  towards  the 
printing  of  a  book,  the  profits  of  which  to  be  for  his  benefit,^ 
the  legatee  may  claim  the  money  without  applying,  or  binding 
himself  to  apply,  it  to  the  purpose  specified,  even  although 
there  is  an  express  declaration  that  he  shall  not  otherwise 
receive  the  money .^  These  cases  go  upon  the  principle  that 
a  court  of  equity  will  not  compel  a  legatee  or  other  party  to 
do  what  he  may  undo  the  next  moment ;  for  as  soon  as  such 
party  has  received  his  ring,  or  house,  or  annuity,  he  may  sell 
it  or  give  up  his  business.^  And  where  money  is  given  to 
trustees,  and  a  discretion  is  given  to  them  how  much  and  in 
what  manner  they  shall  apply  it,  the  cestui  que  trust  has  no 
right  to  more  than  the  trustees  see  fit  to  apply .^"^ 

St.  158,  where  the  cases  are  discussed;  Willard's  App.,  15  P.  F.  Smith, 
265. 

1  Apreece  v.  Apreece,  1  Ves.  &  B.  364. 

2  Dawson  v.  Heanie,  1  R.  &  My.  606;  Ford  v.  Battey,  17  Beav.  303; 
Ee  Brown's  Will,  27  Beav.  324;  Yates  v.  Compton,  2  P.  Wms.  38. 

^  Knox  V.  Hotham,  15  Sim.  82. 

4  Gough  V.  Bult,  16  Sim.  45. 

5  Webb  V.  Kelley,  9  Sim.  472;  Young  Husband  v.  Gisborne,  1  Gall. 
400 ;  Presant  v.  Goodwin,  1  Sm.  &  Tr.  544 ;  Boyne  v.  Crowther,  20  Beav. 
400;  Twopenny  v.  Peyton,  10  Sim.  487. 

6  Barlow  v.  Grant,  1  Vern.  255;  Nevill  v.  Nevill,  2  Vern.  231;  Wool- 
dredge  V.  Stone,  4  L.  J.  (o.  s.)  Ch.  56 ;  Burton  v.  Cook,  5  Ves.  461 ;  Luke 
V.  Kelmorey,  T.  &  R.  207 ;  Att'y-Gen.  v.  Haberdashers'  Co.,  1  My.  &  Keen, 
420;  Lewes  v.  Lewes,  16  Sim.  266;  Noel  v.  Jones,  16  Sim.  309;  Lockhart 
V.  Hardy,  9  Beav.  379;  Lonsdale  v.  Berchtoldt,  3  K.  &  J.  185. 

T  Re  Skinner's  Trusts,  IJ.  &  H.  102. 

8  Stokes  V.  Cheek,  29  L.  J.  Ch.  922. 

9  1  Jarm.  on  Wills,  368  (3d  Lond.  ed.). 

10  Jn  re  Sanderson's  Trusts,  3  Kay  &  J.  497 ;  Beevor  v.  Partridge,  11 
Sim.  229;  Rudland  v.  Crozier,  2  De  G.  &  J.  143;  Cowper  v.  Mantell,  22 
Beav.  231. 

133 


§  121,]  IMPLIED   TRUSTS.  [CHAP.  IV. 

§  120.  If  a  trust  is  implied,  it  is  governed  in  some  respects 
by  rules  entirely  different  from  the  rules  that  govern  a  direct 
trust.  Generally  in  a  direct  trust  the  trustee  takes  no  bene- 
ficial interest  in  himself,  but  in  an  implied  trust  the  trustee 
may  take  the  whole  beneficial  interest  for  life,  with  a  right 
even  to  expend  some  part  of  the  principal  fund.  Thus,  where 
an  estate  was  devised  to  A.  and  her  heirs  in  the  fullest  confi- 
dence that  at  her  decease  she  would  devise  the  property  to 
the  heirs  of  the  testator,  Lord  Eldon  held  that  A.  had  all  the 
rights  in  the  estate  of  a  tenant  for  life,  and  so  it  was  also  held 
in  the  House  of  Lords.^  But  where  a  testator  devised  an 
estate  to  his  wife  and  her  heirs,  under  the  firm  conviction 
that  she  would  dispose  of  and  manage  the  same  for  the  bene- 
fit of  her  children,  it  was  held  that  the  widow  was  not  en- 
titled to  a  beneficial  interest  as  tenant  for  life.^ 

§  121.  Trusts  sometimes  arise  by  implication  from  the  pro- 
visions of  a  will,  in  order  to  carry  out  the  testator's  intention. 
As  where  a  testator  leaves  property  to  A.  with  the  request 
that  he  shall  leave  it  to  B.,  a  trust  in  favor  of  B.  is  created, 
which  is  not  affected  by  the  death  of  A.  before  the  testator.^ 
A  direction  to  continue  the  testator's  business  creates  a  trust.* 
So  where  a  testator  gave  his  wife  an  annuity  of  $1000  a  year, 
to  be  paid  her  by  a  trustee  named,  to  enable  her  to  live  com- 
fortably and  to  support  and  educate  her  children,  and  if  in 
any  year  said  sum  were  insufficient,  the  trustee  was  to  pay  her 
an  additional  sum  not  exceeding  $1000,  The  testator  gave 
a  few  legacies,  and  then  gave  the  remainder  of  his  estate  to 
his  daughters,  and  gave  nothing  to  the  trustee  in  words,  but 
he  authorized  the  trustee  to  sell  certain  of  his  real  estate,  and 
also  to  sell  the  personal  property  not  specifically  devised. 
The  personal  property  was  only  sufficient  to  pay  the  debts  of 
the  testator,  and  the  trustee  had  no  funds  from  which  to  pay 

1  Wright  V.  Atkyns,  T.  &  R.  157;  Lawless  v.  Shaw,  Lloyd  &  Goold, 
Sugden,  154;  Shovelton  v.  Shovelton,  32  Beav.  143. 

2  Barnes  v.  Grant,  2  Jur.  (n.  s.)  1127. 
8  Eddy  V.  Hartshore,  34  N.  J.  Eq.  409. 
*  Ferrv  v.  Laible,  31  N.  J.  Eq.  566. 

134 


CHAP.  IV.]  AGREEMENTS.  [§  121. 

the  annuity  to  the  wife.  It  was  held  by  the  court  that  the 
trustee  took  the  real  estate  in  trust  by  implication,  that  the 
daughters  took  the  remainder  after  the  trusts  were  executed, 
and  that  the  widow  could  enforce  the  payment  of  the  annuity 
by  bill  in  equity  against  the  trustee.^  So  if  a  testator  direct 
his  real  estate  to  be  sold,  or  if  he  charge  it  with  the  payment 
of  debts  or  legacies,  it  may  descend  to  an  heir,  or  pass  to  a 
devisee,  but  the  court  will  consider  the  direction  as  an  im- 
plied declaration  of  trust,  and  enforce  its  execution  in  the 
hands  of  those  to  whom  it  has  come.^  So  a  condition  an- 
nexed to  a  devise  which,  being  broken,  might  work  a  for- 
feiture of  the  estate,  has  in  equity  been  construed  into  an 
implied  trust,  and  enforced  as  such ;  as  where  a  house  was 
devised  to  A.  for  life,  "  he  keeping  the  same  in  repair,"  or 
where  an  estate  is  given  to  one  in  fee,  "  he  paying  the  tes- 
tator's debts  within  a  year."  ^  Sometimes  it  is  very  difficult 
to  determine  whether  or  no  a  trust  ought  to  arise  by  implica- 
tion, as  where  there  is  an  absolute  devise  to  C.  and  conjoined 
therewith  expressions  indicating  a  trust  in  E.*  Where  a  tes- 
tator gave  his  wife  a  life  estate  and  then  left  it  to  her  discre- 
tion to  give  such  aid  to  his  relations  as  she  might  deem  proper 
and  just  of  her  own  will,  it  was  held  that  there  was  no  .  suffi- 
cient expression  of  desire  to  create  a  trust.^  So  where  a  tes- 
tator gave  his  estate  to  his  daughter,  saying,  "  I  enjoin  upon  her 
to  make  such  provision  for  my  grandchild  ...  in  such  manner 

1  Walker  v.  Whiting,  23  Pick.  313  ;  Braman  y.  Stiles,  2  Pick.  460;  Fay 
V.  Taft,  12  Cush.  448;  Watson  v.  Mayrant,  1  Rich.  Ch.  449;  Baker  v. 
Reel,  4  Dana,  158. 

2  Pitt  V.  Pelham,  2  Freem.  134;  1  Ch.  R.  283;  Locton  v.  Locton,  2 
Freem.  136;  Auby  v.  Doyl,  1  Ch.  Ca.  180;  Tennant  v.  Brown,  1  Ch.  Ca. 
180;  Garfoott;.  Garfoot,  1  Ch.  Ca.  35;  2  Freem.  176;  Gwilliams  v.  Rowell, 
Hard.  204;  Blatch  v.  Wilder,  1  Atk.  420;  Carvill  v.  Carvill,  2  Ch.  R.  301 ; 
Cook  V.  Fountain,  3  Swanst.  529;  Bennett  v.  Davis,  2  P.  Wms.  318;  Wigg 
V.  Wigg,  1  Atk.  382;  Hoxie  v.  Hoxie,  7  Paige,  187;  Withers  v.  Yeadon, 
1  Rich.  Ch.  324;  Mclntire  Poor  School  v.  Zan.  Canal  Co.,  9  Ham.  203. 

8  Wright  V.  Wilkin,  2  B.  &  Sm.  232;  Stanley  v.  Colt,  5  Wall.  119; 
Sohierw.  Trinity  Church,  109  IMass.  1;  Re  Skingley,  3  M.  &  Gor.  221; 
Gregg  V.  Coates,  23  Beav.  33.     And  see  Kingham  v.  Lee,  15  Sim.  396. 

*  Slater  v.  Hurlebut,  146  Mass.  308,  314. 

6  Corby  v.  Corby,  85  Mo.  371. 

135 


§  122.]  IMPLIED   TRUSTS.  [CHAP.  IV. 

and  at  such  times  and  in  such  amounts  as  she  may  judge  to  be 
expedient  and  conducive  to  the  welfare  of  said  grandchild,  and 
her  own  sense  of  justice  and  Christian  duty  shall  dictate,"  it 
was  held  that  there  was  no  trust.^  A  gift  "  relying  "  on  the 
donee  to  do  so  and  so  creates  no  trust.^  Giving  the  wife  the 
use  or  proceeds  of  property  after  expenses  are  paid,  and  pro- 
viding for  sale  and  distribution  after  her  death,  creates  a 
trust,  and  gives  the  wife  merely  a  life  right  to  the  rents  and 
profits.^  An  executor  is  always  a  trustee  of  the  personalty, 
and  the  jurisdiction  of  equity  courts  over  trusts  gives  them  a 
right  to  construe  wills  whenever  necessary  to  guide  a  trustee.* 
Wherever  the  duties  imposed  on  the  executors  are  active, 
and  render  possession  of  the  estate  reasonably  necessary,  they 
will  be  deemed  trustees.^  But  merely  calling  an  executor 
"trustee  "in  a  will  which  creates  no  trust  estate  or  duties 
will  not  make  him  a  testamentary  trustee.® 

§  122.  Again,  courts  of  equity  will  imply  a  trust  from  the 
contracts  of  parties,  although  there  are  no  words  of  trust  in 
the  instrument ;  ^  as  if  a  person  for  a  valuable  consideration 
agrees  to  settle  a  particular  estate  upon  another,^  or  if  he 
agrees  to  sell  an  estate  to  another,^  the  settlor  or  vendor  be- 

1  Lawrence  v.  Cooke,  104  N.  Y.  632 ;  overruling  same  case  in  32  Hun, 
126. 

2  Willets  V.  Willets,  35  Hun,  401. 

3  Hathaway  v.  Hathaway,  37  Hun,  265. 

4  Wager  v.  Wager,  89  N.  Y.  161. 
6  Ward  V.  Ward,  105  N.  Y.  68. 

6  In  re  Hawley,  104  N.  Y.  250. 
■^  Taylor  v.  Pownal,  10  Leigh,  183. 

8  Finch  V.  Winchelsea,  1  P.  Wras.  277;  Freemoult  v.  Dedire,  1  P. 
Wms.  429;  Kennedy  r.  Daley,  1  Sch.  &  Le.  355;  Legard  v  Hodges,  1 
Ves.  Jr.  477;  3  Bro.  Ch.  531;  4  Bro.  Ch.  421;  Ravenshaw  v.  Hoilier,  7 
Sim.  3;  Wellesley  v.  Wellesley,  4  M.  &  C  561;  Mornington  v.  Keaue, 
2  De  G.  &  J.  293;  Lyster  v.  Burroughs,  1  Dr.  &  W.  149;  Stock  v.  Moyse, 
12  Ir.  Ch.  246;  Lewis  v.  Madocks,  8  Ves.  150;  17  Ves.  48;  Rowan  v. 
Chute,  13  Ir.  Ch.  169;  Re  McKenna,  13  Ir.  Ch.  239. 

9  Ackland  v.  Gaisford,  3  Madd.  32;  Wilson  v.  Clapham,  IJ.  &  W.  38; 
Ferguson  v.  Tadman,  1  Sim.  530;  Foster  v.  Deacon,  3  Madd.  394;  Paine 
V.  Meller,  6  Ves.  349;  Harford  v.  Furrier,  1  Madd.  539;  Stent  v.  Bailis,  2 

136 


CHAP.  IV.]  AGREEMENTS.  [§  123. 

comes  a  trustee  of  the  fee  for  the  purposes  of  the  settlement, 
or  for  the  purchaser.  Ante-nuptial  contracts  in  regulation  of 
the  interest  that  each  shall  have  in  the  property  of  the  other 
then  owned  or  subsequently  to  be  acquired  are  favored,  and 
will  be  enforced  by  imposing  a  trust  on  the  property.^  A  note 
given  by  one  to  his  wife  during  coverture  will  be  enforced  as 
a  trust,  except  as  against  creditors.^  In  case  of  a  savings 
bank,  where,  after  payment  of  expenses,  the  entire  fund  and 
its  accumulations  go  to  the  depositors,  the  deposits  are  held 
in  trust  for  the  depositors.^  Where  money  is  deposited  in  a 
commercial  bank,  no  trust  in  general  arises,  but  only  a  rela- 
tion of  debtor  and  creditor ;  when,  however,  the  money  is  paid 
into  bank  for  a  specified  purpose  other  than  that  of  a  loan  to 
the  bank,  a  fiduciary  relation  is  created,  and  some  cases  go 
so  far  as  to  hold  that  after  the  bank  has  gone  into  insolvency, 
money  so  paid  may  be  recovered  from  the  assignee  in  pref- 
erence to  the  general  creditors.*  Where  the  plaintiff  placed 
certain  money  in  the  hands  of  the  intestate  to  be  repaid  to 
him  on  her  death,  only  the  relation  of  debtor  and  creditor  was 
created,  and  the  plaintiff  could  not  be  preferred  to  other 
creditors.^ 

§  123.  A  direction  to  trustees  that  a  certain  person  shall 
be  employed  as  agent  and  manager  for  the  trustees  if  there 

P.  Wms.  220;  Minchin  v.  Nance,  4  Beav.  332;  Robertson  v.  Skelton,  12 
Beav.  2G0;  Paramore  v.  Gieenslade,  1  Sm.  &  Gif.  541;  Revell  v.  Hussey, 
2  B.  &  B.  287;  Spurrier  v.  Hancock,  4  Ves.  667;  White  v.  Nutts,  1  P. 
Wms.  61;  Wall  v.  Bright,  1  J.  &  W.  494;  Tasker  v.  Small,  3  M.  &  Cr. 
70;  Pingree  i-.  Coffin,  12  Gray,  288;  Reed  v.  Lukens,  44  Pa.  St.  200; 
Canning  v.  Kenswortby,  21  Ark.  9  ;  Currie  v.  White,  45  N.  Y.  822;  Wim- 
bish  V.  Montgomery  Mut.  Bldg.  &  Loan  Assoc,  69  Ala.  578;  Ricker  v. 
jMoore,  77  Me.  292 ;  Goodwin  v.  Rice,  26  Minn.  20;  Randall  v.  Constans, 
33  Minn.  329. 

1  Johnston  v.  Spicer,  107  N.  Y.  185. 

2  Templeton  v.  Brown,  86  Tenn.  50. 

3  Johnson  v.  Ward,  2  Brad.  (111.)  261. 

*  See  Parsons's  edition  of  Morse  on  Banks  &  Banking,  §§  215,  565  c. 
See  Peak  v.  EUicott,  30  Kans.  156  ;  Ellicott  v.  Barnes,  31  Kans.  170. 
And  see  also  on  this  general  subject  Nat'l  Bank  v.  Ellicott,  31  Kans.  173. 

^  Kershaw  v.  Snowden,  36  Ohio  St.  183. 

187 


§  123.]  IMPLIED   TRUSTS.  [CHAP.  IV. 

should  be  occasion  for  such  services,  gives  no  interest  in  the 
estate  to  such  person,  nor  will  any  kind  of  trust  be  implied 
which  equity  can  enforce  ;  ^  and  so  when  the  trustees  were 
recommended  to  employ  a  receiver.^ 

1  Finden  v.  Stephens,  2  Phill.  142. 

2  Shaw  V.  Lawless,  LI.  &  Goo.,  Sugden,  154;  5  CI.  &  Fin.  129;  LI.  & 
Goo.,  Plunket,  559.  In  Tibbits  v.  Tibbits,  19  Ves.  656,  a  testator  made  a 
devise  to  his  son,  recommending  him  to  continue  A.  &  B.  in  the  occupa- 
tion of  their  respective  farms  so  long  as  they  managed  them  well ;  and  it 
was  lield  to  create  a  trust  for  them.  And  see  Quayle  v.  Davidson,  12 
Moore,  P.  C.  2G8.  In  Hibbert  v.  Hibbert,  3  Mer.  681,  a  testator  directed 
that  II.  should  be  appointed  receiver  of  his  estates  in  Jamaica,  adding 
that  he  intended  the  appointment  to  benefit  H.  in  a  pecuniary  point  of 
view;  and  it  was  held  that  H.  was  entitled  to  be  appointed  agent,  receiver, 
and  consignee  of  said  estates  without  giving  security.  And  so  when  a 
testator  appointed  an  auditor  with  a  remuneration,  it  was  held  that  -the 
trustees  could  not  remove  him,  there  being  no  imputation  upon  his  con- 
duct. Williams  v.  Corbet,  8  Sim.  349.  The  case  of  Shaw  v.  Lawless  was 
a  very  severely  contested  case.  Mr.  Sugden,  Chancellor  for  Ireland,  was 
of  opinion  that  the  agent  was  entitled  to  the  place ;  but  he  was  overruled, 
and  the  conclusion  arrived  at  stated  in  the  text.  From  the  cases  cited  in 
this  note  it  would  appear  that  the  question  is  not  entirely  settled ;  or  it 
may  be  that  every  such  provision  must  depend  upon  the  words  and  inten- 
tion of  each  particular  will. 


138 


CHAP.  V.J  RESULTING  TRUSTS. 


CHAPTER  y. 


RESULTING    TRUSTS. 

§  124.   Creation  and  cliaracter  of  a  resulting  trust. 

§  125.    Divisions  of  this  kind  of  trust. 

§  126.  Resulting  trust  where  the  purchase-money  is  paid  by  one,  and  deed  is 

taken  to  another.     See  §  142. 
§  127.  Resulting  trust  where  trust  funds  are  used  to  purchase  property,  and 

title  taken  in  the  name  of  another. 
§  128.   In  what  cases  a  trust  results,  and  when  a  trust  does  not  result.     See  §§  143, 

156,  160. 
§  129.  When  a  person  uses  his  fiduciary  relation  to  obtain  an  interest  in,  or 

affecting  the  trust  property. 
§  130.  Same  rules  apply  to  personal  property  unless  it  is  of  a  perishable  nature. 

§  131,  Where  a  resulting  trust  will  not  be  permitted  as  against  law. 

§  136.  No  resulting  trust  in  a  joint  purchase. 

§  132.    Rules  as  to  a  resulting  trust. 

§§  133,  134.  Time  and  circumstances  in  the  creation  of  a  resulting  trust. 
§  135.   Parol  evidence  as  to  a  purchase  by  an  agent  not  admissible. 
§§  137,  138.    Resulting  trusts  may  be  established  by  parol. 
§  139.  May  be  disproved  bj'  parol  —  the  burden  of  proof. 

§  140.  Cannot  be  changed  by  parol  after  they  arise. 

§  141.   Will  not  be  enforced  after  a  great  lapse  of  time. 
§  142.   Resulting  trusts  under  the  statutes  of  New  York  and  other  States. 
§  143.  A  resulting  trust  does  not  arise  if  the  title  is  taken  in  the  name  of  wife  or 

child. 
§  144.  What  persons  it  embraces. 

§  145.  Doubts  and  overruled  cases. 

§  146.  When  it  will  be  presumed  to  be  an  advancement. 

§  147.  The  presumption  may  be  rebutted. 

§  148.  Is  rebutted  by  fraud  in  the  wife  or  child. 

§  149.  Creditors  may  avoid  such  advancements.     When  and  how. 

§  150.    A  resulting  trust  from  the  conveyance  of  the  legal  title  without  the  beneficial 

interest. 
§  151.  Every  case  must  depend  upon  its  particular  writing  and  circumstances. 

§  152.  Instances  and  illustrations. 

§§  153, 154.     If  there  is  an  intention  to  benefit  the  donee,  there  is  no  resulting  trust. 
§  155.   Gifts  to  executors  may  create  resulting  trusts. 
§  156.   Resulting  trusts  do  not  arise  upon  gifts  to  charitable  uses. 
§  157.   A  gift  upon  trust  or  to  a  trustee  and  no  trust  declared. 
§  158.   Always  a  matter  of  intention  to  be  gathered  from  the  whole  instrument. 
§  159.   Where  a  special  trust  fails  it  will  result. 

§  160.  Where  a  special  trust  fails  from  illegality  or  lapses,  it  results. 

§  160  a.  To  whom  it  results. 

139 


§  125.]  RESULTING   TRUSTS.  [CHAP.  V. 

§§  IGl,  1G2.  Whether  a  trust  results  from   a  voluntary    conveyance    without   con- 
sideration. 
§  1G3.  Equity  does  not  favor  such  conveyances;  they  may  be  void  for  fraud, 

but  no  trust  results. 
§  164.  Voluntarj'  conveyances  to  wife  or  child. 

§  165.   No  trust  results  from  a  fraudulent  transaction. 
§  165  a.   How  a  resulting  trust  is  executed. 

§  124.  It  has  been  seen  from  the  preceding  chapters  that 
trusts  are  created  by  the  express  dispositions  of  parties,  or 
they  are  implied  by  courts  from  the  words  used  in  such  ex- 
press dispositions.  There  is  another  class  of  trusts  wJiic.h 
result  in  law  from  the  acts  of  parties,  whether  they  intended 
to  create  a  trust  or  not,  and  they  are  aptly  designated  as  result- 
ing trusts.  They  are  sometimes  called  presumptive  trusts, 
because  the  law  presumes  them  to  be  intended  by  the  parties 
from  the  nature  and  character  of  their  transactions  with  each 
other,  although  the  general  foundation  of  this  kind  of  trusts 
is  the  natural  equity  that  arises  when  parties  do  certain 
things.  Thus,  if  one  pays  the  purchase-money  of  an  estate, 
and  takes  the  title-deed  in  the  name  of  another,  in  the  absence 
of  all  evidence  of  intention,  the  law  presumes  a  trust,  from 
the  natural  equity  that  he  who  pays  the  money  for  property 
ought  to  enjoy  the  beneficial  interest.  The  statute  of  frauds 
does  not  affect  the  creation  of  these  trusts,  for  the  reason 
that,  where  there  is  no  evidence  of  intention,  it  could  not  be 
expected  that  a  declaration  of  intention  in  writing,  properly 
signed,  would  be  made  or  could  be  produced. 

§  125.  Lord  Chancellor  Hardwicke  said  that  a  resulting 
trust  arising  by  operation  of  law  existed :  (1)  when  an  estate 
was  purchased  in  the  name  of  one  person  and  the  considera- 
tion came  from  another  ;  (2)  when  a  trust  was  declared  only 
as  to  part,  and  nothing  was  said  as  to  the  residue,  that  residue 
remaining  undisposed  of,  remained  to  the  heir-at-law  ;  and  he 
observed  that  he  did  not  know  of  any  other  instances,  unless 
in  case  of  fraud.^      In  this  chapter  resulting  trusts  will  be 

1  Lloyd  V.  Spillett,  2  Atk.  150.     In  2  Lomax,  Dig.  200,  resulting  trusts 
are  considered  under  the  name  of  implied  trusts,  as  arising:  (1)  out  of 
the  equitable  conversion  of  land  into  money  or  money  into  land;  (2)  where 
140 


CHAP,  v.]  PURCHASE   WITH    ANOTHER'S    MONEY.  [§  126. 

examined  under  five  heads :  (1)  when  the  purchaser  of  an 
estate  pays  the  purchase-money  and  takes  the  title  in  the 
name  of  a  third  person ;  (2)  where  a  person  standing  in  a 
fiduciary  relation  uses  fiduciary  funds  to  purchase  property, 
and  takes  the  title  in  his  own  name ;  (3)  where  an  estate  is 
conveyed  upon  trusts,  which  fail,  or  are  not  declared,  or  are 
illegal ;  (4)  when  the  legal  title  to  property  is  conveyed,  and 
there  is  no  reason  to  infer  that  it  was  the  intention  to  convey 
the  beneficial  interest ;  and  (5)  where  voluntary  conveyances 
are  made,  or  conveyances  without  consideration. 

§  126.  Where,  upon  a  purchase  of  property,  the  convey- 
ance of  the  legal  title  is  taken  in  the  name  of  one  person, 
while  the  consideration  or  a  part  of  it  is  given  or  paid  by  an- 
other, not  in  the  way  of  a  loan  to  the  grantee,  the  parties  being 
strangers  to  each  other,  a  resulting  trust  immediately  arises 
from  the  transaction  (unless  it  would  be  enforcing  a  fraud 
to  raise  a  resulting  trust  i),  and  the  person  named  in  the 
conveyance  will  be  a  trustee  for  the  party  from  whom  the 
consideration  proceeds.^     In  a  Minnesota  case  the  court  said 

an  estate  is  purchased  in  the  name  of  one  person  and  the  consideration  is 
paid  by  another ;  (3)  where  there  is  a  conveyance  of  land  without  any 
consideration  or  declaration  of  uses;  (4)  where  a  conveyance  of  land  is 
made  in  trust  as  to  part  and  the  conveyance  is  silent  as  to  the  residue;  (5) 
where  a  conveyance  is  made  upon  such  trusts  as  shall  be  appointed,  and 
there  is  default  of  appointment;  (6)  where  a  conveyance  is  made  upon 
particular  trusts  which  fail  of  taking  effect;  (7)  where  a  purchase  is 
made  by  a  trustee  with  trust  money;  (8)  where  a  purchase  of  real  estate 
is  made  by  a  partner  in  his  own  name  with  partnership  funds;  (9)  where 
a  renewal  of  a  lease  is  obtained  by  a  trustee  or  other  person  standing  in  a 
fiduciary  relation;  (10)  where  purchases  are  made  of  outstanding  claims 
upon  an  estate  by  trustees  or  some  of  the  tenants  thereof  connected  by 
privity  of  estate  with  others  having  an  interest  therein;  (11)  where  fraud 
has  been  committed  in  obtaining  the  conveyance;  (12)  where  a  purchase 
has  been  made  without  a  satisfaction  of  the  purchase-money  to  the  ven- 
dor; (13)  where  a  joint  purchase  has  been  made  by  several,  and  pay-, 
ments  of  the  purchase-money  to  the  vendor  have  been  made  beyond  their 
proportion. 

1  Almond  v.  Wilson,  75  Va.  626. 

2  Willis  V.  Willis,  2  Atk.  71;  Lloyd  v.  Spillett,  2  Atk.  150;  Rider  v. 
Kidder,  10  Ves.  360;  Ex  parte  Houghton,  17  Ves.  253;  Trench  v.  Harrison, 

141 


§  126.]  EESULTIXG   TRUSTS.  [CHAP.  V. 

that  no  resulting  trust  arose  where  land  was  bought  by  A.  in 
the  name  of  B.,  and  B.  sold  the  property  in  violation  of  his 

17  Sim.  Ill ;  Redington  v.  Redington,  3  Ridg.  177;  Crop  v.  Norton,  9  Mod. 
235;  Barn.  181;  2  Atk.  75;  Hungate  v.  Hungate,  Toth.  120;  Ex  parte 
Vernon,  2  P.  Wms.  519;  Ambrose  v.  Ambrose,  1  P.  ^Yms.  321;  Woodman 
V.  Morrel,  2  Freem.  33,  123;  Mmless  v.  Franklin,  1  Swanst.  17;  Finch  v. 
Finch,  15  Ves.  50;  Grey  v.  Grey,  2  Swanst.  597;  Finch,  310;  Groves  v. 
Groves,  3  Y.  &  J.  170;  Lade  v.  Lade,  1  Wils.  21;  May  v.  Steele,  2  V.  & 
B.  390;  Lever  v.  Andrews,  7  Bro.  P.  C.  288;  Pelly  v.  Maddin,  21  Vin. 
Ab.  498;  Smith  v.  Camelford,  2  Ves.  Jr.  712 ;  Anon.  2  Vent.  3G1 ;  With- 
ers t'.  Withers,  Arab.  151;  Prankerd  v.  Prankerd,  1  S.  &  S.  1 ;  Howe  v. 
Howe,  1  Vern.  415;  Clarke  v.  Danvers,  1.  Ch.  Ca.  310;  Goodright  v. 
Hodges,  1  Watk.  Cop.  227  ;  Lofft,  230;  Smiths.  Baker,  1  Atk.  385;  Bart- 
lett  V.  Pickersgill,  1  Eden,  515;  Rothwell  v.  Dewees,  2  Black.  613;  Buck 
V.  Pike,  11  Me.  9;  Baker  v.  Vining,  30  Me.  126;  Kelley  v.  Jenness,  50 
Me.  455;  Page  v.  Page,  8  N.  H.  187;  Hall  v.  Young,  37  X.  H.  134;  Pem- 
broke V.  Allenstown,  21  N.  H.  107;  Tebbetts  v.  Tilton,  31  N.  H.  283; 
Dow  *'.  Jewell,  18  N.  H.  340;  Tyford  v.  Thurston,  16  N.  H.  399;  Hop- 
kinson  v.  Dumas,  42  N.  H.  296;  Hall  v.  Congdon,  56  N.  H.  270;  Pinney 
r.  Fellows,  15  Vt.  525;  Dewey  v.  Long,  25  Vt.  564;  Clark  v.  Clark,  43 
Vt.  685;  Peabody  v.  Tarbell,  2  Cush.  232;  Livermore  v.  Aldrich,  5  Gush. 
435;  Rootu.  Blake,  14  Pick.  271;  McGowan  v.  McGowan,  14  Gray,  121; 
Kendall  v.  Mann,  11  Allen,  15,  Powell  v.  Monson  &  Brimfield  Manuf. 
Co.,  3  Mason,  362;  Hoxie  v.  Carr,  1  Sumn.  187;  Dean  v.  Dean,  6  Conn. 
285;  Jackson  t'.  Sternberg,  1  Johns.  Ca.  153;  1  Johns.  45;  Jackson  v. 
Matsdorf,  11  Johns.  91;  Boyd  v.  McLean,  1  Johns.  Ch.  582;  Botsford  r. 
Burr,  Id.  408;  Steere  v.  Steere,  5  id.  1;  White  v.  Carpenter,  2  Paige, 
218;  Kellogg  v.  Wood,  4  Paige,  579  ;  Foote  v.  Colvin,  3  Johns.  218;  Jack- 
son V.  Morse,  16  Johns.  197;  Guthrie  v.  Gardner,  19  Wend.  414;  Forsyth 
v.  Clark,  3  Wend.  638;  Partridge  v.  Havens,  10  Paige,  618;  Jackson  v. 
IVIills,  13  Johns.  463;  Lounsbury  v.  Purdy,  16  Barb.  376  ;  Jackson  r. 
Woods,  1  Johns.  Ca.  163;  Gomez  v.  Tradesman's  Bank,  4  Sandf.  S.  C. 
106;  Hempstead  v.  Hempstead,  2  Wend.  109;  Hopk.  288;  Harder  v. 
Harder,  2  Sand.  Ch.  17;  Brown  v.  Cheney,  59  Barb.  628;  Union  College 
V.  Wheeler,  59  Barb.  585;  McCartney  v.  Bostwick,  32  N.  Y.  53;  Depey- 
ster  V.  Gould,  2  Green,  Ch.  480;  Howell  v.  Howell,  15  N.  J.  Ch.  75; 
Stratton  v.  Dialogue,  16  N.  J.  Ch.  70;  Johnson  v.  Dougherty,  18  N.  J. 
Ch.  406;  Stevens  v.  Wilson,  18  N.  J.  Ch.  447;  Cutler  v.  Tuttle,  19  N.  J. 
Ch.  558;  Stewart  v.  Brown,  2  Ser.  &  R.  461  ;  Jackman  v.  Ringland,  4 
Watts  &  S.  149 ;  Strimpfler  i'.  Roberts,  18  Pa.  St.  283 ;  Wallace  v.  Duf- 
field,  2  Ser.  &  R.  521;  Edwards  v.  Edwards,  39  Pa.  St.  369;  Lloyd  v. 
Carter,  5  Harris,  216;  Beck  v.  Graybill,  4  Casey,  66;  Kisler  v.  Kisler,  2 
Watts,  323;  Lynch  v  Cox,  11  Harris,  265;  Harrold  v.  Lane,  55  Pa.  St. 
268;  Nixon's  App.,  63  Pa.  St.  279;  Newells  v.  Morgain,  2  Harr.  225; 
142 


CHAP,  v.]  PURCHASE   WITH   ANOTHER'S   MONEY.  [§  126. 

verbal  promise  to  transfer  to  A.,  remarking  that  a  resulting 
trust  could  arise  only  on  a  conveyance  of   land  not,  on   a 

Hollis  V.  Hollis,  1  Md.  Ch.  479  ;  Dorsey  v.  Clarke,  4  Har.  &  J.  551 ;  Glenn 
V.  Randall,  2  Md.  Ch.  221 ;  Farringer  v.  Ramsey,  2  Md.  365  ;  Cecil  Bank  v. 
Suively,  23  Md.  253 ;  Neale  v.  Haythrop,  3  Bland,  551 ;  Bank  of  U.  S. 
V.  Carrington,  7  Leigh,  566;  Henderson  v.  Hoke,  1  Dev.  &  Bat.  Eq.  119; 
McGuire  v.  McGowen,  4  Des.  491;  Dillard  v.  Crocker,  Speers'.s  Eq.  20; 
Williams  v.  HoUingsworth,  1  Strob.  Eq.  103  ;  Garrett  v.  Garrett,  1  Strob. 
Eq.  96;  Kirkpatrick  v.  Davidson,  2  Kelly,  297;  Taliaferro  v.  Taliaferro, 
6  Ala.  404;  Foster  v.  Trustees  of  the  Athenaeum,  3  Ala.  302;  Caple  v. 
McCoUum,  27  Ala.  461;  Anderson  v.  Jones,  10  Ala.  401;  Mahorner 
V.  Harrison,  13  Sm.  &  M.  65;  Walker  v.  Burngood,  Id.  764  ;  Powell  v. 
Powell,  1  Freem.  Ch.  134;  Leiper  v.  Hoffman,  26  Miss.  615;  Runnells  v. 
Jackson,  1  How.  (Miss.)  358;  Harvey  v.  Ledbetter,  48  Miss.  95;  IMcCar- 
roU  V.  Alexander,  48  Miss.  128;  Hall  v.  Sprigg,  7  Mar.  (La.)  243  ;  Gaines 
V.  Chew,  2  How.  619;  McDonough  Ex'rs  v.  Murdock,  15  How.  367; 
Tarpleyy.  Poaze,  2  Tex.  139;  Long  w.  Steiger,  8  Tex.  460;  Oberthier  v. 
Strand,  33  Tex.  522,  McGuire  v.  Ramsey,  4  Eng.  519;  Ensley  v.  Ballen- 
tine,  4  Humph.  233;  Thomas  v.  Walker,  5  Humph.  93;  Smitheal  v.  Gray, 
1  Humph.  491;  Click  v.  Click,  1  Heisk.  607;  Gass  v.  Gass,  1  Heisk.  613 
Harris  v.  Union  Bank,  1  Cold.  152;  Perry  v.  Head,  1  A.  K.  Marsh.  47 
Letcher  v.  Letcher,  4  J.  J.  Marsh.  592;  Doyle  v.  Sleeper,  1  Dana,  536 
Stark  V.  Canady,  3  Litt.  399;  Chaplin  v.  McAfee,  3  J.  J.  Marsh.  513 
Creed  v.  Lancaster  Bank,  1  Ohio  St.  1 ;  Williams  v.  Van  Tuyl,  2  Ohio 
St.  336;  McGovern  v.  Knox,  21  Ohio  St.  551;  Elliott  v.  Armstrong,  2 
Blackf.  198;  Jenison  v.  Graves,  Id.  444;  Rhodes  v.  Green,  36  Ind.  11; 
Milliken  v.  Ham,  36  Ind.  166;  Church  v.  Cole,  36  Ind.  35  ;  Hampson  v. 
Fall,  64  Ind.  382  ;  Smith  v.  Sackett,  5  Gilm.  534;  Prevo  v.  Walters,  4 
Scam.  33  ,  Bruce  r.  Roney,  18  111.  67;  Seaman  v.  Cook,  14  111.  501 ;  Wil- 
liams V.  Brown,  14  111.  200 ;  Nickols  v.  Thornton,  16  111.  113  ;  Latham  v. 
Henderson,  47  111.  185  ;  Rankin  v.  Harper,  23  Mo.  579  ;  Paul  v.  Chouteau, 
14  Mo.  580;  Kelly  v.  Johnson,  28  Mo.  249  ;  Baumgartner  v.  Guessfeld, 
38  Mo.  36;  Johnson  v.  Quarles,  46  Mo.  423;  Ru,ssell  v.  Lode,  1  Iowa,  566; 
McLennan  v.  Sullivan,  13  Iowa,  521;  Tinsley  v.  Tiiisley,  52  Iowa,  14: 
Ragan  v.  Walker,  1  Wis.  527;  Irvine  v.  Marshall,  7  Minn.  286;  Millard 
V.  Hathaway,  27  Cal.  119  ;  Bayles  v.  Baxter,  22  Cal.  575  ;  Case  v.  Codding, 
38  Cal.  191  ;  Wilson  v.  Castro,  31  Cal.  420 ;  Jenkins  v.  Frink,  30  Cal.  586  ; 
Settembre  v.  Putnam,  30  Cal.  490;  Frederick  v.  Haas,  5  Nev.  386;  Philips 
V.  Crammond,  2  Wash.  C.  C.  441  ;  Harden  v.  Darwin  &  Pulley,  66  Ala. 
55;  Lewis  v.  Building  &  Loan  Assoc,  70  Ala.  276;  Rose  v.  Gibson,  71 
Ala.  35 ;  Shelby  v.  Tardy,  84  Ala.  327;  Shelton  v.  A.  &  T.  Company,  82 
Ala.  315;  Barroilhet  v.  Anspacher,  68  Cal.  116;  Murphy  v.  Peabody,  63 
Ga.  .522;  Cottle  v.  Harrold,  72  id.  8.30;  McNamara  v.  Garrity,  106  111. 
384;  Springer  u.^pringer,  114  111.  550;  Harris  u.  Mclntyre,  118  111.  275; 

143 


§  12C.]  RESULTING   TRUSTS.  [CHAP,  V. 

promise  to  convey.  This  is  clearly  too  narrow  a  meaning  to 
give  the  law,  and  the  decision  on  the  facts  did  not  require  it, 
as  the  court  allowed  A.  to  recover  from  B.  the  purchase-money 
as  benefit  received  by  B.  voluntarily  from  A.^  The  burden  is 
of  course  upon  the  one  claiming  the  existence  of  the  trust  to 
establish  the  facts  upon  which  it  rests  by  clear  and  satisfac- 
tory evidence.2  In  New  York  and  Wisconsin  there  are  statute 
provisions  that  an  absolute  deed  made  with  consent  of  the  one 
who  pays  the  purchase-money  shall  vest  the  title  in  the 
grantee  ^  against  the  person  paying  the  money ;  *  but  with  this 

Donlin  v.  Bradley,  119  111.  420;  Bush  v.  Stanley,  122  HI.  406;  Cooper  v. 
Cockrum,  87  Ind.  443;  Boyer  v.  Libey,  88  Ind.  235;  Witts  v.  Horney,  59 
Md.  584;  Forrester  v.  Moore,  77  Mo.  651;  Bear  v.  Koenigstein,  16  Neb. 
65;  Gogherty  v.  Bennett,  37  N.  J.  Eq.  87;  Syckle  v.  Kline,  34  N.  J.  Eq. 
332;  Ramage  v.  Eamage,  27  S.  C.  39;  Sexton  r.  Hollis,  26  S.  C.  231; 
Richardson  v.  Mounce,  19  S.  C.  477;  Ex  parte  Trenholm,  Id.  126,  —  an 
interesting  case  because  of  the  decision  that  money  drawn  from  a  fund 
belonging  to  A.  and  B.  together  was  to  be  considered  as  taken  from  the 
part  that  belonged  to  A.,  and  no  trust  should  result  to  B.  in  the  land 
bought  by  the  check,  it  appearing  that  on  settlement  of  all  the  ac- 
counts B.  was  indebted  to  A.  ;  Laws  v.  Law,  76  Va.  527;  see  also  Murray 
V.  Sell,  23  W.  Va.  473;  Heiskell  i-.  Powell,  23  W.  Va.  717.  The  rule  ap- 
plies where  money  is  advanced  to  enable  a  former  owner  to  redeem  from 
a  tax  sale.  Eames  v.  Hardin,  111  111.  615.  In  Michigan,  the  transaction 
or  trust  must  appear  upon  the  face  of  the  deed,  otherwise  no  trust  results 
to  the  payer  of  the  purchase-money.  Groesbeck  v.  Seeley,  13  Mich.  329; 
Campbell  v.  Campbell,  21  Mich.  428. 

1  Johnson  v.  Krassin,  25  Minn.  118;  see  §  226. 

2  Bibb  V.  Hunter,  79  Ala.  351;  Carter  Bros.  v.  Challen,  83  Ala.  135; 
Reynolds  v.  Caldwell,  80  Ala.  232. 

3  Schultze  V.  Xew  York  City,  103  N.  Y.  311  ;  Campbell  v.  Campbell, 
70  Wis.  311 ;  R.  S.  §  2077  ;  Skinner  v.  James,  69  id.  605.  And  the  bur- 
den is  on  the  person  claiming  the  trust  to  disprove  assent.  Knight  v. 
Leary,  54  Wis.  459.  Even  though  the  grantee  subsequently  acknowledges 
the  trust  in  writing,  it  will  not  avail  against  one  who  has  taken  the  land 
from  the  grantee  for  value,  or  even  against  his  assignees  in  insolvency. 
Stebbins  v.  Morris,  23  Blatch.  (U.  S.)  181, — a  case  construing  the  New 
York  statutes,  the  object  of  which  is  to  prevent  secret  trusts;  and  for  this 


*  As  against  his  ci'editors  the  transaction  is  presumed  fraudulent  until 
fraudulent  intent  is  disproved,  and  a  trust  results  in  their  favor.     Niver 
V.  Crane,  98  N.  Y.  40. 
144 


CHAP,  v.]     PURCHASE  WITH  ANOTHER'S  MONEY.       [§  126. 

exception  the  clear  result  of  all  the  cases  is,  that  a  trust 
of  a  legal  estate,  whether  freehold,  copyhold,  or  leasehold, 
whether  taken  in  the  names  of  the  purchaser  and  others 
jointly,  or  in  the  name  of  others,  without  that  of  the  pur- 
chaser, whether  in  one  or  several,  whether  jointly  or  succes- 
sively, results  to  the  person  who  advanced  the  purchase- 
money,^  or  on  whose  behalf  it  is  advanced;  as  where  the 
money  is  advanced  by  way  of  loan  to  the  purchaser,  and  the 
title  is  taken  in  the  name  of  the  lender  as  security,  a  trust  re- 
sults to  the  purchaser.2  If  only  part  of  the  purchase-money  is 
paid  by  a  third  person,  a  trust  results  pro  tanto?  This  rule 
has  its  foundation  in  the  natural  presumption,  in  the  absence  of 
all  rebutting  circumstances,  that  he  who  supplies  the  purchase- 
money  intends  the  purchase  to  be  for  his  own  benefit,  and 
not  for  another,  and  that  the  conveyance  in  the  name  of  an- 
other is  a  matter  of  convenience  and  arrangement  between  the 
parties  for  collateral  purposes,*  and  this  rule  is  vindicated  by 
the  experience  of  mankind.^  Where  the  purchase-money  is 
not  already  a  trust  fund  it  must  be  paid  at  the  time  the  pur- 
chase is  made  in  order  to  create  a  resulting  trust  proper  (that 
is,  the  trust  must  arise  at  the  time  of  the  transfer  of  the 
title,  and  cannot  be  raised  by  the  subsequent  application  of 
money  of  another  to  the  satisfaction  of  the  unpaid  purchase- 
money  ^  );  and  it  must  also  be  borne  in  mind  that  if  one  person 
advance  the  money  by  way  of  loan  to  the  vendee,  no  trust  re- 
sults.^   Analogous  to  these  cases  where  the  money  is  paid  to 

purpose  they  destroy  trusts  resulting  from  the  payment  of  purchase-money 
when  the  deed  is  made  to  another  with  consent  of  the  payor,  except  that 
every  such  conveyance  is  deemed  fraudulent  as  against  the  creditors 
of  the  person  paying  the  purchase-money  until  fraudulent  intent  is 
disproved. 

1  By  Lord  Ch.  B.  Eyre  in  Dyer  v.  Dyer,  2  Cox,  92. 

2  Bates  V.  Kelly,  80  Ala.  142. 

8  Somers  v.  Overhulser,  67  Cal.  237;  Lipscomb  v.  Nichols,  6  Col.  290. 
4  2  Story's  Eq.  Jur.  §  1201;  Glidewell  v.  Shaugh,  26  Ind.  319;  Bostle- 
man  v.  Bostleman,  24  N.  J.  Eq.  103. 

6  Edwards  v.  Edwards,  39  Pa.  St.  369. 

8  Milner  v.  Freeman,  40  Ark.  62;  see  §  133. 

7  Whaley  v.  Whaley,  71  Ala.  162 ;  see  §  133. 

VOL.  I.  — 10  145 


§  127.]  RESULTING    TKUSTS.  [CHAP.  V. 

the  vendor  by  or  on  behalf  of  some  one  other  than  the  vendee 
of  the  legal  title,  are  cases  in  which  the  deed  is  executed  with- 
out intent  of  a  gift  or  sale  on  time,  and  the  purchase-money 
is  not  paid.  In  effect,  the  vendor  himself  pays  the  purchase- 
money  in  such  cases,  and  a  trust  results  to  him.^  These  result- 
ing trusts  cannot  affect  a  bona  fide  purchaser  without  notice.^ 

§  127.  If  a  person  having  a  fiduciary  character  purchase 
property  with  the  fiduciary  funds  in  his  hands,  and  take  the  title 
in  his  own  name,  a  trust  in  the  property  will  result  to  the  cestui 
que  trust,  or  other  person  entitled  to  the  beneficial  interest  in 
the  fund  with  which  the  property  was  paid  for.^  As  if  a 
trustee  purchase  with  the  trust  fund  and  take  the  title  in  his 
own  name  or  in  the  name  of  another  with  notice  of  tlie  trust, 
the  trust  results  to  the  cestui  que  trust ;  *  if  a  guardian  purchase 
with  the  money  of  his  ward,  a  trust  will  result  to  the  ward  ;  ^ 

1  Beunet  v.  Hutson,  33  Ark.  762. 

2  Gray  v.  Corbit,  4  Del.  Cb.  135. 

3  Schlaeper  v.  Corson,  32  Barb.  510  ;  Rice  v.  Rice,  108  111.  199 ;  Merket 
V.  Smith,  33  Kans.  66,  whether  the  title  taken  is  absolute  or  only  quali- 
fied or  contingent;  AVeaver  v.  Fisher,  110  111.  146.  In  St.  Patrick's 
Church  V.  Daly,  116  111.  79,  the  rule  is  not  correctly  stated,  though  the 
decision  is  right  on  the  facts.  Palmetto  Co.  v.  Kisley,  25  S.  C.  309 ; 
Salinas  v.  Pearsall,  24  S.  C  179  ;  Kennedy  v.  Baker,  59  Tex.  151.  An 
agent  of  an  illiterate  man,  loaning  his  principal's  money  on  note  and 
mortgage  payable  to  himself,  who  bids  in  the  property  at  foreclosure  sale, 
holds  the  title  in  trust  for  his  principal.  Cookson  v.  Richardson,  69  111.  137. 

4  Freeman  v.  Kelly,  1  Hoff .  90 ;  Harrisburgh  Bank  v.  Tyler,  3  Watts 
&S.  373;  Martin  v.  Greer,  1  Geo.  Dec.  109;  Moffitt  v.  McDonald,  11 
Humph.  457;  Kirkpatrick  v.  McDonald,  11  Pa.  St.  387;  Wilhelm  v. 
Folmer,  6  Pa.  St.  296;  Day  v.  Roth,  18  N.  Y.  448;  Lathrop  v.  Gilbert,  2 
Stockt.  344;  McLarren  v.  Brewer,  51  Me.  402;  Thompson's  App.,  22  Pa. 
St.  16;  Pugh  V.  Pugh,  9  Ind.  132;  Valle  v.  Bryan,  19  Mo.  423;  Neill  v. 
Keese,  13  Tex.  187;  Hancock  v.  Titus,  33  Miss.  224;  Whaley  v.  Whaley, 
71  Ala.  161 ;  Preston  v.  McMillan,  58  Ala.  84;  Buck  v.  Paine,  75  Me.  347  ; 
Bank  v.  Simonton,  86  N.  C.  189. 

5  Caplinger  v.  Stokes,  Meigs,  175 ;  Lee  v.  Fox,  6  Dana,  171 ;  Pugh  v. 
Pugh,  9  lud.  132;  Johnson  \\  Dougherty,  3  Green,  Ch.  406;  Bancroft  v. 
Cousen,  13  Allen,  50.  But  if  the  guardian  buy  for  the  ward,  but  use  his 
own  money  in  payment,  the  ward  cannot  claim  a  trust  in  the  land,  for  it 
is  within  the  statute  of  frauds.  Kisler  «.  Kisler,  2  Watts,  323  ;  Johnson 
V.   Dougherty,  18  N.  J.  Ch.  406 ;  Snell  v.  Elam,  2  Heisk.    82.     If  a 

146 


CHAP,  v.]  PURCHASE   WITH   TRUST   MONEY.  [§  127. 

and  if  an  executor  or  administrator  purchase  property  in  his  own 
name  with  money  belonging  to  the  estate,  a  trust  in  the  prop- 
erty will  result  to  the  heirs,  legatees,  or  other  persons  entitled 
to  the  beneficial  interest  in  the  estate.^  A  purchase  with  trust 
funds  is  virtually  a  purchase  for  the  cestui?'  If  the  trustees  of 
a  corporation  purchase  lands  in  their  own  names,  with  the  cor- 
porate funds,  a  trust  will  result  to  the  corporation  ;  ^  or  if  a  com- 
mittee, guardians,  or  trustees  of  an  insane  person  purchase 
property  in  their  own  names  with  the  lunatic's  money,  a  trust 
results  to  the  lunatic  ;  *  or  if  a  trustee  erect  buildings  on  his 
own  land  with  the  trust  funds,^  or  if  an  agent  with  the  money 
of  his  principal  purchase  lands  and  take  the  deeds  to  himself, 
a  trust  will  result  to  the  principal ;  ^  or  if  a  partner  purchase 
lands  with  partnership  funds,  and  take  the  title  to  himself,  a 
trust  will  result  to  the  partnership ;  '^  or  if  land  is  bought  by 

guardian  receive  a  note  in  his  own  name  in  payment  of  a  debt  due  the 
ward,  the  note  is  held  by  him  in  trust.     Dorr  v.  Davis,  76  Me.  301. 

1  Wallace  v.  Duffield,  2  Ser.  &  R.  521 ;  Buck  v.  Uhrich,  16  Pa.  St.  499; 
Claussen  v.  Le  Franz,  1  Clarke,  226;  McCrory  ;;.  Foster,  1  Clarke,  Iowa, 
271;  Harper  v.  Archer,  28  Miss.  212;  Schaffner  v.  Grutzmacher,  6  Clarke, 
1.37;  Seaman  v.  Cook,  U  111.  501;  Garrett  v.  Garrett,  1  Strob.  Eq.  96; 
Williams  v.  HoUingsworth,  1  Strob.  Eq.  103;  AVhite  v.  Drew,  42  Mo. 
561;  Stow  V.  Kimball,  28  111.  93;  Barker  v.  Barker,  14  Wis.  131;  Dodge 
V.  Cole,  97  111.  338. 

2  Gale  V.  Harby,  20  Fla.  171. 

3  Church  V.  Sterling,  16  Conn.  388;  Church  v.  Wood,  5  Ham.  283. 

4  Reidy.  Fitch,  11  Barb.  399;  Turner  v.  Pettigrew,  6  Humph.  438; 
Stratton  v.  Dialogue,  1  Gi'een,  Ch.  70;  Buffalo  R.  R.  Co.  v.  Lampson,  47 
Barb.  533;  Hamnett's  App.,  72  Pa.  St.  337. 

6  Brazel  v.  Fair,  26  S.  C.  370. 

«  Robb's  App.,  41  Pa.  St.  45 ;  Farmers,  &c.  Bank  r.  King,  57  Pa.  St. 
202;  Church  v.  Sterling,  16  Conn.  388;  Bank  of  America  v.  Pollock,  4 
Edw.  215;  Eshleman  v.  Lewis,  49  Pa.  St.  410;  Day  r.  Roth,  18  N.  Y 
448;  Bridenbeckerw.  Lowell,  32  Barb.  10;  MofBttv.  McDonald,  11  Humph. 
457;  Hutchinson  v.  Hutchinson,  4  Des.  77;  Follansbe  v.  Kilbreth,  17 
111.  522 ;  Chastain  v.  Smith,  30  Ga.  96 ;   Wynn  v.  Sharer,  23  Ind.  253. 

'  Philips  V.  Crammond,  2  Wash.  C.  C.  441;  Baldwin  v.  Johnston, 
Saxt.  441;  Freeman  v.  Kelly,  Hoff.  90;  Turner  v.  Pettigrew,  6  Humph. 
438,  441;  Edgar  v.  Donnally,  2  Munf.  387;  Smith  v.  Burnham,  3  Sumner, 
435;  Piatt  v.  Oliver,  2  McLean,  267;  Coder  v.  Haling,  27  Pa.  St.  84; 
Smith  V.  Ramsey,  1  Gil.  111.  373;  Barkley  v.  Tapp,  87  Ind.  25;  Pugh  v. 

147 


§  127.]  RESULTING  TRUSTS.  [CHAP.  V. 

a  firm  for  firm  purposes  with  firm  money,  and  the  title  is  taken 
in  their  individual  names,  it  is  held  in  trust  for  the  firm  ;  ^  or 
if  one  take  an  estate  for  services  rendered  jointly  by  himself 
and  another,  the  latter  may  elect  to  regard  the  first  as  a  trus- 
tee ;2  or  if  a  husband  purchase  lands  with  the  separate 
estate  of  his  wife  in  his  hands,  or  with  the  proceeds  or  accu- 
mulations from  it,  or  money  put  into  his  hands  to  invest  for 
his  wife,  and  take  the  title  in  his  own  name,  a  trust  results  to 
the  wife^  (but  not  if  the  property  used  is  such  as  the  husband 
has  a  right  to  reduce  to  possession  and  make  his  own,  and  his 
conduct  evinces  an  intent  to  do  this  ^ )  ;  or  if  a  man  pur- 
chase an  estate  with  the  money  of  a  woman  with  whom  he 
cohabits,  a  trust  results  to  lier.^  If  a  widow  purchase  an 
estate  in  her  own  name  with  funds  of  her  deceased  husband, 

Currie,  5  Ala.  446 ;  Oliver  v.  Piatt,  3  How.  401 ;  Evans  v.  Gibson,  29  Mo. 
223;  Mallory  v.  Mallory,  5  Bush,  564;  Settembre  v.  Putnam,  30  Cal.  490; 
Jenkins  v.  Frink,  30  Cal.  586;  Homer  v.  Homer,  107  Mass.  85;  Richards 
V.  Manson,  101  Mass.  480;  Ebberts's  App.,  70  Pa.  St.  79;  Winkfield  v. 
Brinkman,  21  Kans.  682;  Trephagen  v.  Burt,  67  N.  Y.  30;  Boyd  v. 
McClure,  1  J.  Ch.  582. 

1  Paige  V.  Paige,  71  Iowa,  318. 

2  Robarts  v.  Haley,  65  Cal.  402. 

3  Church  V.  Jaques,  1  Johns.  Ch.  4.50;  3  id.  77;  Brooks  v.  Dent,  1 
Johns.  Md.  Ch.  523 ;  Dickinson  v.  Codwise,  1  Sandf .  Ch.  214 ;  Pinney  v. 
Fellows,  15  Vt.  525;  Bavron  v.  Barron,  24  Vt.  375;  Lathrop  v.  Gilbert,  2 
Stockt.  344;  Kline's  App.,  39  Pa.  St.  463;  Raybold  v.  Raybold,  20  Pa.  St. 
308;  Darkin  v.  Darkin,  23  L.  J.  Ch.  890;  Wallace  v.  McCullough,  1  Rich. 
Eq.  426;  Fillman  v.  Divers,  31  Pa.  St.  429;  Pritchard  v.  Wallace,  4 
Sneed,  405;  Resor  u.  Resor,  9  Ind.  347;  Lench  r.  Lench,  10  Ves.  511; 
Woodford  v.  Stephens,  51  Mo.  443;  Davis  v.  Davis,  46  Pa.  St.  342;  Til- 
ford  V.  Torrey,  53  Ala.  120 ;  Gainus  v.  Cannon,  42  Ark.  503 ;  Slocum  v. 
Slocum,  9  Brad.  (111.)  142;  Loften  v.  Witboard,  92  111.  461;  Radcliff  v. 
Radford,  96  Ind.  482;  Deny  v.  Derry,  98  Ind.  324;  Lord  v.  Bishop,  101 
Ind.  334;  Mitchell  w.  Colglazier,  106  Ind.  466;  Broughton  v.  Brand,  94 
Mo.  169 ;  Bowen  v.  McKean,  82  Mo.  594,  pro  tanto ;  City  Nat.  Bank  v. 
Hamilton,  34  N.  J.  Eq.  158;  Price  v.  Brown,  98  N.  Y.  388;  Cade  v.  Davis, 
96  N.  C.  139;  McKamey  v.  Thorp,  61  Tex.  648;  Parker  v.  Coop,  60  Tex. 
Ill,  and  cases  cited;  John  v.  Battle,  58  Tex.  591;  Heath  v.  Slocum,  115 
Pa.  St.  549;  Bigley  t:  Jones,  114  Pa.  St.  510;  Rupp's  App.,  100  Pa.  St. 
531 ;  Holgate  v.  Eaton,  116  U.  S.  33. 

*  Cummings  v.  Cummings,  143  Mass.  340-342. 
5  James  v.  Holmes,  4  De  G.,  F.  &  J.  470. 
148 


CHAP,  v.]  PURCHASE   WITH    TRUST   MONEY.  [§  128. 

a  trust  results  to  his  children  ;  ^  and  so  if  a  father  purchase  in 
his  own  name  or  the  name  of  a  third  person  with  funds  of  his 
children  ;^  and  the  rule  is  the  same  if  purchases  are  made  out 
of  the  savings  of  the  wife's  separate  property  ;  but  if  the  pur- 
chase is  made  from  savings  out  of  an  allowance  made  bv  the 
husband,  or  out  of  the  wife's  earnings,  no  trust  will  result.^ 
Even  where  the  entry  of  land  in  the  name  of  one  for  the  use 
of  another  is  contrary  to  statute,  the  person  with  whose  money 
the  land  was  bought,  if  innocent  of  the  wrongful  entry,  may 
claim  a  resulting  trust.* 

§  128.  In  all  these  cases  the  transaction  is  looked  upon  as 
a  purchase  paid  for  by  the  cestui  que  trust,  as  the  beneficial 
interest  in  the  money  paid  belonged  to  him  ;  ^  and  the  iden- 
tity of  the  money  does  not  consist  in  the  specific  pieces  of 
money  or  bills,  but  in  the  general  character  of  the  fund  out 
of  which  the  payment  is  made,  and  the  fund  may  be  followed 
so  long  as  its  general  character  can  be  identified.^  But  when 
the  means  of  identification  fail,  as  when  an  executor  converts 
an  estate  into  money  and  mixes  it  with  the  general  mass  of 
his  own  money,  and  there  is  no  identifying  the  particular 
money  of  the  trust,  the  distributees  or  legatees  have  no  pref- 
erence over  his  other  creditors,  but  they  must  prove  their 
claims."  If,  however,  a  trustee  purchase  an  estate  with  trust 
funds,  and  add  funds  of  his  own  to  the  purchase-money,  a 
trust  will  result  to  the  cestui  que  trust ;  and  the  burden  will 

*  Fox  V.  Doherty,  30  Iowa,  334;  Roberts  v.  Opp,  56  III.  34;  Musham 
V.  Musham,  87  111.  80- 

2  Robinson  v.  Robinson,  22  Iowa,  427;  Eastham  v.  Roundtree,  56 
Tex.  110. 

8  Raybold  v.  Raybold,  20  Pa.  St.  308;  Merrill  v.  Smith,  37  Me.  394; 
Henderson  v.  Warmack,  27  Miss.  830;  Farley  v.  Blood,  10  Foster,  354. 

*  Buren  v.  Buren,  79  Mo.  538. 

6  Lench  v.  Lench,  10  Ves.  517;  Trench  v.  Harrison,  17  Sim.  111. 

^  United  States  v.  Waterborough,  Davies,  154;  Goepp's  App.,  3  Harris, 
428;  Thompson's  App.,  22  Pa.  St.  16;  McLarren  v.  Brewer,  51  Me.  402 
De  Bevoise  v.   Sandford,  Hoff.  194;  Campbell  v.  Walker,  5  Ves.  678 
Downes  v.  Grazebrook,  3  Mer.  200;  Sanderson  v.  Walker,  13  Ves.  601 
Overseers  of  the  Poor  v.  Bank  of  Virginia,  2  Grat.  544. 

'  Thompson's  App.,  22  Pa.  St.  16;  McComas  v.  Long,  85  Ind.  552. 

149 


§  128.]  RESULTING   TRUSTS.  [CHAP.  V. 

be  on  the  trustee  to  show  the  amount  of  his  own  funds  in  the 
purchase,  otherwise  the  cestui  que  trust  will  take  the  whole.^ 
If  the  purchase  is  partly  with  trust  funds  and  partly  not,  the 
cestui  has  a  lien  on  the  whole  property  for  the  amount  of 
the  fund  misapplied.^  It  has  been  said  in  some  cases  that  the 
cestui  que  trust  has  no  interest  in  the  property  purchased  with 
the  trust  fund  in  the  name  of  the  trustee,  but  only  a  lien  on 
the  property  in  the  nature  of  a  vendor's  lien  for  the  purchase- 
money,  with  a  right  to  a  decree  for  a  sale  to  reimburse  the 
trust  fund.^  This  is  certainly  one  of  the  rights  of  the  cestui 
que  trusty  if  he  elects  to  proceed  in  that  manner,  and  lie  may 
hold  the  trustee  responsible,  if  there  is  a  loss  on  such  sale.  On 
the  other  hand,  the  trustee  can  make  no  profit  to  himself  by 
dealing  with  the  trust  fund ;  *  and,  if  he  makes  a  purchase 
with  it,  the  cestui  que  trust  can  elect  to  treat  the  property  as  a 
part  of  the  trust  property,  and  he  is  entitled  to  all  the  advan- 
tages of  the  speculation  or  investment  thus  made  with  the 
property  in  tlie  name  of  the  trustee.^  No  trust  results  to  the 
holder  of  property  (H.)  from  the  fact  that  money  has  been 
given  to  B.  by  C.  in  order  that  B.  may  purchase  the  said  prop- 
erty. H.  cannot  offer  a  deed  and  demand  the  money .^  So 
where  A.  sells  land  in  which  he  (A.)  has  an  interest  as  well  as 
E.,  A.  giving  a  bond  for  the  making  of  a  future  good  title  to  the 
whole,  and  then  investing  the  money  received  in  other  prop- 
erty, there  is  no  trust  for  E.  in  this  property  ;  the  purchase- 
money  was  obtained  by  A.,  not  in  consideration  for  E.'s  in- 
terest in  the  land,  but  in  consideration  for  the  promise  made 
by  A.  in  his  bond.'^     And  if  trust  money  is  expended  not  in 

^  Russell  V.  Jackson,  10  Hare,  209;  McLarren  v.  Brewer,  51  RIe.  402; 
Seaman  v.  Cook,  14  111.  505;  Farmers,  &c.  Bank  v.  King,  57  Pa.  St.  202; 
Fersch  v.  Quiggle,  57  Pa.  St.  247. 

2  Munro  v.  Collins,  95  Mo.  42. 

8  Wallace  v.  Duffield,  2  Ser.  &  R.  529;  Wallace  v.  McCuUough,  1 
Rich.  Ch.  426. 

*  Landis  v.  Saxton,  89  Mo.  375;  Ward  v.  Davidson,  Id.  445. 

5  Hill  on  Trustees,  534;  Lewin  on  Trusts,  227  (5th  Lond.  ed.);  Lench 
V.  Lench,  10  Ves.  511 ;  19  Ves.  58  ;  Weaver  v.  Fisher,  110  111.  146  ;  Bent  v. 
Priest,  86  Mo.  475. 

«  Rogers  v.  Rogers,  63  Iowa,  92.  ''  Hadley  v.  Stuart,  62  Iowa,  271. 
150 


CHAP,  v.]  PURCHASE    WITH    TRUST    MONEY.  [§  129. 

the  purchase  of  land  but  in  improvements  upon  it,  no  trust 
results  to  the  owner  of  the  money. ^  If  one  who  stands  in  no 
fiduciary  relation  to  another  appropriates  the  other's  money, 
and  invests  it  in  real  estate  or  other  property,  no  trust  results 
to  the  owner  of  the  money .^  There  is  no  doubt  of  this  prin- 
ciple upon  all  the  cases,  but  there  is  some  question  in  the 
books  as  to  what  is  a  fiduciary  relation,  as  whero  a  clerk  pil- 
fered money  from  the  store  of  his  employer  and  invested  it  in 
real  estate,  it  was  held  that  there  was  no  such  resulting  trust ; 
that  the  employer  could  compel  a  conveyance  of  the  land.'^ 
But  where  a  clerk  in  a  bank  embezzled  money,  and  invested  it 
in  stocks  in  the  names  of  his  sisters  as  mere  volunteers,  it  was 
held  that  a  trust  resulted  to  the  owners  of  the  money,  and 
that  equity  would  execute  it  by  compelling  a  conveyance;'* 
and  this  would  seem  to  be  the  better  opinion,  as  a  clerk  cer- 
tainly holds  a  confidential  relation  to  his  employer.  In  New- 
ton V.  Porter,  it  was  held  that  the  holders  of  the  proceeds  of 
stolen  property  might  be  charged  as  trustees  for  the  owner, 
and  there  would  seem  to  be  no  principle  to  the  contrary.^  It 
may  depend,  however,  upon  the  extent  to  which  the  clerk  is 
trusted.  In  Lehmann  v.  Rothbarth  ^  the  husband  of  a  trustee 
taking  upon  himself  the  management  of  the  estate  was  held 
to  account  as  trustee  to  the  cestui  for  funds  coming  to  him  as 
self-constituted  agent  for  the  true  trustee. 

§  129.  If  a  person  standing  in  a  fiduciary  relation  makes 
use  of  his  position  to  purchase  an  interest  in  the  trust  prop- 
erty with  his  own  funds,  as  a  reversion,  a  junior  or  senior 
mortgage,  or  other  interest  from  a  third  person ;  or  if  he 
purchase  other  property  so  immediately  connected  with  the 
trust  estate,  that  it  must  be  used  with  the  trust  estate,  and 

1  Bodwell  V.  Nutter,  63  N.  H.  446. 

2  Hawthorne  v.  Brown,  3  Sueed,  462;  Ensley  v.  Ballentine,  4  Humph. 
233. 

8  Campbell  v.  Drake,  4  Tred.  94;  Pascoag  Bank  ik  Hunt,  3  Edw.  583. 

*  Bank  of  America  v.  Pollock,  4  Edw.  215;  post,  §  135. 

5  Newton  v.  Porter,  5  Lansing,  417;  Thompson  v.  Parker,  3  Mason, 
332;  Hoffman  v.  Canow,  22  Wend.  285  ;  Bassett  v.  Spofford,  45  N.  Y.  387; 
Silsbury  v.  McCoon,  3  Comst.  579.  «  111  111.  185. 

151 


§  129.]  RESULTING   TRUSTS.  [CHAP.  V. 

the  independent  ownership  of  which  would  seriously  affect 
the  use  and  value  of  the  trust  property,  he  cannot  retain 
the  same  for  his  own  benefit,  but  he  must  hold  it  upon  a 
resulting  trust  for  his  beneficiary.^  The  prohibition  of  the 
purchase  of  trust  property  by  the  trustee  does  not  depend 
on  any  question  of  fraud,  but  is  made  absolute  to  avoid  the 
possibility  of  fraud.^  The  temptation  of  self-interest  is  too 
powerful  and  insinuating  to  be  trusted.  A  trustee  must  put 
himself  in  a  position  where  his  private  profit  will  oppose  the 
interests  of  the  estate.^  If  a  trustee  buys  an  outstanding 
claim  against  the  trust  property,  the  transaction  will  be 
treated  as  a  payment  only,  and  he  will  be  allowed  only  what 
he  gave.^  Railway  directors  cannot  deal  with  the  property 
for  their  individual  benefit,  and  a  sale  of  it  to  any  one  of  the 
board  would  be  voidable  in  equity  at  the  instance  of  any  one 
interested  in  the  road.^  A  trustee  may  not  buy  for  himself 
an  outstanding  title  to  the  estate.^  One  in  a  fiduciary  posi- 
tion must  not  so  conduct  himself  as  to  bring  his  private  in- 
terests in  conflict  with  the  duties  of  his  office.  If  an  adminis- 
trator buys  land  sold  to  pay  a  debt  due  his  intestate,  the  heirs 
and  distributees  can  elect  to  take  the  land  and  allow  him  his 
bid.'^  A  purchaser  from  a  trustee  who  has  acquired  the  trust 
property  stands  in  no  better  position  than  the  trustee,  if  said 

1  Holt  V.  Holt,  1  Ch.  Ca.  190;  Nesbitt  v.  Tredennick,  1  Ball  &  B.  46; 
Greenlaw  r.  King,  3  Beav.  9;  10  L.  J.  (n.  s.)  Ch.  129;  Van  Epps  v.  Van 
Epps,  9  Paige,  237 ;  Torrey  v.  Bank  of  Orleans,  9  Paige,  649 ;  Tanner  v. 
Elworthy,  4  Beav.  487;  Waters  v.  Bailey,  2  Y.  &  C.  (N.  C.)  Ch.  219; 
Geddings  v.  Geddings,  3  Russ.  241;  Dickinson  v.  Codwise,  1  Sandf.  Ch. 
226;  Settembre  v.  Putnam,  30  Cal.  490;  Jenkins  v.  Frink,  30  Cal.  586; 
Hall  w.  Vanness,  49  Pa.  St.  457;  Campbell  v.  Campbell,  21  Mich.  459; 
King  V.  Cushman,  43  111.  31 ;  Clark  v.  Cantwell,  3  Head,  202 ;  Harrold  v. 
Lane,  53  Pa.  St.  269;  Heath  v.  Page,  63  Pa.  St.  108;  Holmes  v.  Camp- 
bell, 10  Minn.  40;  Wells  v.  Francis,  7  Col.  396 ;  Shaw  v.  Shaw,  86  Mo.  594. 

2  Downs  V.  Richards,  4  Del.  Ch.  416;  Munson  v.  S.  G.  &  C.  R.  R.  Co  , 
103  N.  Y.  58.  3  Russell  v.  Peyton,  4  Brad.  (111.)  481. 

*  Rankin  v.  Bancroft  &  Co.,  114  111.  441 ;  Gilman  v.  Healey,  49  Hun,  274. 
6  Little  Rock  &  F.  S.  Ry.  Co.  v.  Page,  35  Ark.  304;  Duncomb  v.  N".  Y. 
H.  &  No.  R.  R.  Co.,  84  N.  Y.  190. 

«  Baker  v.  S.  &  W.  Mo.  R.  Co.,  86  Mo.  75. 
'  Jones  V.  Graham,  36  Ark.  383. 

152 


CHAP,  v.]  PURCHASE   WITH    TRUST   MONEY.  [§  131 

purchaser  has  notice  of  the  facts.^  A  mere  agent,  who  pur- 
chases a  reversion  in  the  lands  of  his  principal  at  a  public  sale 
from  third  persons  with  his  own  money,  will  not  be  held  as  a 
trustee,  unless  he  purchase  under  some  agreement  to  that 
effect ;  ^  and  the  same  rule  applies  to  a  tenant  in  common.^ 

§  130.  The  rule  embraces  personal  property  as  well  as  real 
estate  ;  and  if  a  man  purchase  a  bond,*  annuity,^  stock,^  mort- 
gage, or  other  personal  interest,'^  in  the  name  of  a  third  person, 
the  equitable  ownership  results  to  the  person  from  whom  the 
consideration  moves  ;  but  it  is  said  that  a  resulting  trust  cannot 
be  set  up  in  personal  property  perishable  in  its  nature.^ 

§  131.  Nor  can  a  resulting  trust  be  set  up  if  it  would  break 
in  upon  the  policy  of  the  law,  or  a  public  statute ;  ^  as  if  an 
alien  forbidden  to  hold  land  should  pay  the  purchase-money 
and  take  the  deed  to  a  stranger,  a  resulting  trust  in  his  favor 
would   not   be  enforced  by  the  courts.^^      But  a  slave,  who 

1  Cavagnaro  v.  Don,  63  Cal.  231. 

2  Kennedy  v.  Keating,  34  Mo.  25. 

8  Keller  v.  Anble,  58  Pa.  St.  412;  Mandeville  v.  Solomon,  33  Cal.  38. 

*  Ebrand  v.  Dancer,  2  Ch.  Ca.  26 ;  1  Eq.  Ab.  382. 

6  Rider  v.  Rider,  10  Ves.  363,  and  cases  cited;  2  Mad.  Ch.  Pr.  101. 

8  Ibid. ;  Lloyd  v.  Read,  1  P.  Wms.  607;  Sidmouth  v.  Sidmouth,  2  Beav. 
447;  Garrick  v.  Taylor,  29  Beav.  79;  4  De  G.,  F.  &  J.  159  ;  Beecher  v. 
Major,  2  Dr.  &  Sm.  431 ;  Ex  parte  Houghton,  17  Ves.  253  ;  Creed  v.  Lan- 
caster Bank,  1  Ohio  St.  1. 

''  Ibid. ;  Kelley  v.  Jenness,  50  Me.  455. 

*  Union  Bank  v.  Baker,  8  Humph.  447. 

9  Ex  parte  Yallop,  15  Ves.  67;  Ex  parte  Houghton,  17  Ves.  251:  Red- 
ington  V.  Redington,  3  Ridg.  181;  Groves  v.  Groves,  3  Y,  &  J.  163; 
Camden  v.  Anderson,  5  T.  R.  709;  Proseus  v.  Mclntre,  5  Barb.  425;  Ford 
V.  Lewis,  10  B.  Mon.  127;  Baldwin  v.  Campfield,  4  Halst.  Ch.  891;  Cut- 
ler V.  Tuttle,  19  N.  J.  Ch.  562. 

1°  Leggett  V.  Dubois,  5  Paige,  114;  Hubbard  v.  Goodwin,  3  Leigh,  492; 
Philips  V.  Craramond,  2  Wash.  C.  C.  441 ;  Taylor  v.  Benham,  5  How. 
U.  S.  270;  Farley  v.  Shippen,  Wythe,  135;  Alsworth  v.  Cordby,  3  Miss. 
32;  Childers  I'.  Childers,  1  De  G.  &  J.  482;  Phillpotts  r.  Phillpotts,  10 
C.  B.  85.  But  if  such  conveyance  is  not  intended  as  a  fraud  upon  the 
law,  but  is  taken  by  an  agent  or  attorney  of  the  alien  in  his  own  name 
without  authnrity,  equity  will  protect  the  rights  of  the  alien.  Austin  ». 
Brown,  6  Paige,  448;  McCow  v.  Galbrath,  7  Rich.  Law,  74. 

153 


§  132.]  RESULTING  TRUSTS.  [CHAP.  V. 

could  not  acquire  property,  purchased  land  in  the  name  of  a 
free  person  with  the  assent  of  his  master,  and  afterwards  be- 
coming free,  the  resulting  trust  was  enforced  in  his  favor ;  ^ 
and  so  if  the  disability  of  the  alien  is  removed  by  naturaliza- 
tion or  otherwise,  he  may  enforce  a  trust  created  while  he  was 
under  disability.^ 

§  132.  Lord  Hardwicke  doubted  whether  the  application 
of  the  rule  was  not  confined  to  a  single  purchaser ;  ^  but  it  has 
been  expressly  decided  and  long  acted  upon,  that  if  several 
make  the  purchase,  pay  the  consideration,  but  take  the  title 
in  the  name  of  a  stranger,  the  trust  will  result  to  them 
jointly.*  The  same  rule  applies  if  several  pay  the  considera- 
tion, and  take  the  title  to  one  of  their  number.  If  the  parties 
contribute  unequally  to  the  payment  of  the  consideration,  the 
trust  results  to  each  of  them  in  proportion  to  the  amount  paid 
by  each.^  In  these  cases  it  is  settled  that  a  general  contri- 
bution towards  a  purchase  is  not  sufficient ;  but  the  person 
claiming  a   resulting   trust  must  show   that   he   paid   some 

1  Leiper  v.  Hoffman,  26  Miss.  615. 

2  Osterman  v.  Baldwin,  6  Wallace,  116. 

3  Crop  V.  Norton,  Barn.  179;  9  Mod.  233;  2  Atk.  74. 

*  Baumgartner  v.  Guessfeld,  38  Mo.  36;  Wray  v.  Steele.  2  V.  &  B. 
888;  Ross  v.  Hegeman,  2  Edw.  373;  Larkins  v.  Rhoades,  5  Porter,  196; 
Powell  V.  Monson  and  Brim.  Manufacturing  Co.,  3  Mason,  590;  Letcher 
V.  Letcher,  4  J.  J.  Marsh.  590  ;  Keaton  v.  Cobb,  1  Dev.  Ch.  439. 

5  Rigden  v.  Walker,  3  Atk.  735;  Lake  v.  Gibson,  1  Eq.  Ca.  Ab.  291; 
Botsford  V.  Burr,  2  Johns.  Ch.  405;  Quackenbush  v.  Leonard,  9  Paige, 
334;  Jackson  v.  Moore,  6  Cow.  706;  Stewart  v.  Brown,  2  Serg.  &  R.  461; 
Morey  v.  Herrick,  18  Pa.  St.  129;  Buck  v.  Swazey,  35  Me.  41;  Powell  v. 
Monson  and  Brim.  Manufacturing  Co.,  3  Mason,  347;  Pierce  v.  Pierce,  7 
B.  Mon.  433;  Letcher  v.  Letcher,  4  J.  J.  Marsh.  590;  Shoemaker  v. 
Smith,  11  Humph.  81;  Bernard  v.  Bongard,  Harr.  Ch.  130;  Purdy  v. 
Purdy,  3  Md.  Ch.  547;  Seaman  v.  Cook,  14  111.  505;  Hall  v.  Young,  37 
N.  H.  134;  Pinney  v.  Fellows,  15  Vt.  525;  Brothers  v.  Porter,  6  B.  Mon. 
106;  Bogert  i>.  Perry,  17  Johns.  351;  Jackson  v.  Bateman,  2  Wend.  570; 
Cloud  V.  Ivie,  28  Mo.  578;  Baumgartner  v.  Guessfeld,  38  Mo.  36;  Union 
College  V.  Wheeler,  5  Lansing,  160;  McDonald  v.  McDonald,  24  Ind.  68; 
Kelley  v.  Jenness,  50  Me.  455;  Dow  v.  Jewell,  18  N.  H.  340;  Frederick 
V.  Haas,  5  Nev.  389 ;  Case  ;;.  Codding,  38  Cal.  191 ;  Claik  v.  Clark,  43 
Vt.  685. 

154 


CHAP,  v.]  HOW   THEY  ARISE.  [§  133. 

specific  sum,  for  some  distinct  interest  in,  or  aliquot  part  of, 
the  estate,  as  for  a  specific  share,  as  one  half  or  one  quarter, 
or  other  particular  fraction  of  the  whole ;  or  for  a  particular 
interest,  as  for  an  estate  for  life  or  years,  or  in  remainder  in 
the  whole  estate.^  Where  two  contribute  funds  and  the  pro- 
portions do  not  appear,  the  presumption  is  that  the  propor- 
tions are  equal .^ 

§  133.  The  trust  must  result,  if  at  all,  at  the  instant  the 
deed  is  taken,  and  the  legal  title  vests  in  the  grantee.  No 
oral  agreements,  and  no  payments,  before  or  after  the  title  is 
taken,  will  create  a  resulting  trust,  unless  the  transaction  is 
sucli  at  the  moment  the  title  passes  that  a  trust  will  result 
from  the  transaction  itself.^     But  if  the  transaction  creates  a 

1  McGowan  v.  McGowan,  14  Gray,  119;  Buck  v.  Warren,  Id.  122,  n.; 
Baker  v.  Viuing,  30  Me.  121;  Sayre  v.  Townseuds,  15  Wend.  647;  White 
V.  Carpenter,  2  Paige,  217;  Perry  v.  McHenry,  13  111.  227;  Crop  v.  Nor- 
ton, 2  Atk.  74;  Reynolds  v.  Morris,  17  Ohio  St.  510;  Cutler  v.  Tuttle,  19 
N.  J.  Ch.  561 ;  1  Lead.  Ca.  Eq.  276;  Billings  v.  Clinton,  6  Rich.  (S.  C.) 
90;  Olcott  t'.  Bynura,  17  Wall.  44. 

^  Shoemaker  v.  Smith,  11  Humph.  81. 

8  See  §  120.  Frickett  v.  Durham,  109  Mass.  422;  Rogers  v.  Murray, 
3  Paige,  390;  Dudley  v.  Batchelder,  53  Me.  403;  Connor  v.  Lewis,  16  Me. 
275;  Pinnoch  «.  Clough,  16  Vt.  500;  Taliaferro  v.  Taliaferro,  6  Ala.  404; 
McGowan  v.  McGowan,  14  Gray,  119;  Barnard  v.  Jewett,  97  Mass.  87; 
Freeman  v.  Kelly,  1  Hoff.  90;  Foster  v.  Trustees,  &c.,  3  Ala.  302;  For- 
syth V.  Clark,  3  Wend.  637 ;  Steere  v.  Steere,  5  Johns.  Ch.  1 ;  Botsford  v. 
Burr,  2  Johns.  Ch.  408;  Jackson  v.  Moore,  6  Cow.  706;  White  v.  Car- 
penter, 2  Paige,  218 ;  Niver  v.  Crane,  98  N.  Y.  40;  Page  v.  Page,  8  N".  H. 
187;  Bucky.  Pike,  2  Fairf.  9;  Graves  v.  Dugan,  6  Dana,  331;  Wallace  ^^ 
Marshall,  9  B.  Mon.  148;  Gee  v.  Gee,  2  Sneed,  395;  Kelly  v.  Johnson,  28 
Mo.  249  ;  Williard  v.  Williard,  56  Pa.  St.  119;  Nixon's  App.,  63  Pa.  St. 
279;  Cutler  y.  Tuttle,  19  N.  J.  Ch.  561;  Sheldon  v.  Harding,  44  111.  68; 
Westerfield  v.  Kimmer,  82  Ind.  369;  Kendall  v.  Mann,  11  Allen,  15;  Gerry 
V.  Stimson,  60  Me.  186 ;  Wheeler  v.  Kirtland,  23  N.  J.  Eq.  13;  Tunnard  v. 
Littell,  23  N.  J.  Eq.  264 ;  Forsyth  v.  Clark,  3  Wend.  657 ;  Davis  v.  Wetherell, 
11  Allen,  19,  n. ;  Miller  i;.  Blose,  30  Grat.  (Va.)  744;  Billings*;.  Clinton,  6 
Rich.  (S.  C.)  90;  Boozer  v.  Teague,  27  S.  C.  349;  Richardson  v.  Day,  20 
S.  C.  412;  Parker  I'.  Coop,  60  Tex.  Ill;  Du  Val  v.  Marshall,  3  Ark.  230; 
Rhear.  Tucker,  56  Ala.  450;  McCluretJ.  Doak,  6  Baxter  (Tenn.),  364;  Sul- 
livan V.  Sullivan,  86  Tenn.  376;  Buck  v.  Swazey,  35  Me.  51.  A  subsequent 
agreement  will  not  raise  such  a  trust.     Knox  v.  McFarran,  4  Col.  586. 

155 


§  133.]  RESULTING   TRUSTS.  [CHAP.  V. 

trust,  a  subsequent  act  may  enlarge  its  effect,  as  by  removing 
a  mortgage  to  which  the  trust  was  subject.^  And  where  an 
administrator  out  of  the  assets  in  his  hands  pays  the  balance 
due  on  land  bought  by  the  deceased,  and  takes  title  to  himself, 
the  heirs  can  hold  him  as  a  trustee.^  And  where  the  money 
of  another  in  the  hands  of  the  purchaser  is  his  only  reliance 
for  procuring  the  title,  he  cannot  escape  from  a  resulting  trust 
by  paying  a  little  of  his  own  money  at  the  time,  and  the  re- 
mainder in  trust  money  afterward.^  If  two  agree  to  purchase, 
and  one  furnishes  all  the  money  and  takes  the  title  to  him- 
self, no  trust  results  to  the  other.*  And  so  if  two  agree  to 
purchase,  and  one  pays  the  whole  consideration  money,  and 
the  title  is  taken  to  the  two,  no  trust  results  to  the  one  who 
paid  the  whole  ;  he  can  only  enforce  repayment  of  one  half  the 
consideration  money .^  There  must  be  an  actual  payment 
from  a  man's  own  money,  or  what  is  equivalent  to  payment 
from  his  own  money,  to  create  a  resulting  trust.^  And  the 
money  must  be  advanced  and  paid  in  the  character  of  a  pur- 
chaser ;  for  if  one  pay  the  purchase-money  by  way  of  loan 
for  another,  and  the  conveyance  is  taken  to  the  other,  no  trust 

^  Leonard  v.  Green,  34  Minn.  141. 

2  Jones  i:  Slaughter,  96  N.  C.  541. 

3  McLaughlin  v.  Fulton,  104  Pa.  St.  161. 

4  Brooks  V.  Fowle,  14  N.  H.  248;  Tebbetts  v.  Tilton,  31  N.  H.  273; 
Edwards  v.  Edwards,  39  Pa.  St.  369;  Coppage  v.  Barnett,  34  Miss.  6'21; 
Cook  V.  Bronaugh,  8  Eng.  183;  Fowke  v.  Slaughter,  3  A.  K.  Marsh. 
56. 

^  2  Sugd.  V.  &  P.  575  (13th  ed.);  Butler  v.  Rutledge,  2  Cold.  4. 

^  Wheeler  v.  Kirtland,  23  N.  J.  Eq.  13;  Tunnard  v.  Littell,  23  N.  J. 
Eq.  264;  Roberts  v.  Ware,  40  Cal.  634;  Page  v.  Page,  8  N.  H.  187;  Gomez 
V.  Tradesman's  Bank,  4  Sandf.  S.  C.  106;  Coates  v.  Woodworth,  13  111. 
634;  Beck  v.  Graybill,  4  Casey,  66;  Reeve  v.  Strawn,  14  111.  94;  Ferguson 
V.  Sutphen,  3  Gil.  547;  Lounsbury  v.  Purdy,  16  Barb.  380;  Ruunells  v. 
Jackson,  1  How.  (Miss.)  358;  Harrisburg  Bank  v.  Tyler,  3  Watts  &  S. 
373;  Morey  v.  Herrick,  18  Pa.  St.  123;  Smith  v.  Sackett,  5  Gilra  534; 
Kelly  V.  Johnson,  28  Mo.  249;  Botsford  v.  Burr,  2  Johns.  Ch.  405;  Get- 
man  V.  Getman,  1  Barb.  Ch.  499;  Wright  v.  King,  Harr.  Ch.  12;  Bernard 
t;.  Bongard,  Harr.  Ch.  130;  Dudley  v.  Batchelder,  53  Me.  403;  Russell  v. 
Allen,  10  Paige,  249;  Kirkpatrick  v.  ^McDonald,  1  Jones,  393;  Smith  v. 
Burnham,  3  Sumner,  435 ;  White  v.  Sheldon,  4  Nev.  280;  Kendall  v.  Mann, 
11  Allen,  15. 

156 


CHAP,  v.]  HOW   THEY   ARISE.  [§  134. 

will  result  to  the  one  who  thus  pays  the  purchase-money ;  ^ 
on  the  other  hand,  if  one  should  advance  the  purchase-money 
and  take  the  title  to  himself,  but  should  do  this  wholly  upon 
the  account  and  credit  of  the  other,  he  would  hold  the  estate 
upon  a  resulting  trust  for  the  other.^  And  if  j^artly  on  the 
account  and  credit  of  another,  he  would  hold  as  trustee  pro 
tanto.^ 

§  134.  A  trust  results  from  the  acts,  and  not  from  the 
agreements,  of  the  parties,  or  rather  from  the  acts  accom- 
panied by  the  agreements ;  but  no  trust  can  be  set  up  by  mere 
parol  agreements,  or,  as  has  been  said,  no  trust  results  merely 
from  the  breach  of  a  parol  contract ;  as  if  one  agrees  to  pur- 
chase land  and  give  another  an  interest  in  it,  and  he  purchases 
and  pays  his  own  money,  and  takes  the  title  in  his  own  name, 
no  trust  can  result.'^     And  so  if  a  party  makes  no  payment, 

1  Bartlett  v.  Pickersgill,  1  Eden,  516;  Crop  v.  Norton,  9  Mod.  235; 
White  V.  Carpenter,  2  Paige,  217;  Henderson  o.  Hoke,  1  Dev.  &  Bat.  Ch. 
119;  Dudley  v.  Batchelder,  53  Me.  403;  Gibson  v.  Toole,  40  Miss.  788; 
Whaley  v.  Whaley,  71  Ala.  162;  Harvey  v.  Pennybacker,  4  Del.  Ch.  445; 
Boehl  V.  Wadgymar,  54  Tex.  589. 

2  Aveling  v.  Knipe,  19  Ves.  441;  Page  v.  Page,  8  N".  H.  187;  Runnells 
V.  Jackson,  1  How.  (Miss.)  358;  Lounsbury  v.  Purdy,  18  N.  Y.  515;  16 
Barb.  380;  Buck  v.  Pike,  2  Fairf.  9;  Morey  v.  Herrick,  18  Pa.  St.  123; 
Kelly  V.  Johnson,  28  Mo.  249;  Cutler  v.  Tuttle,  19  N.  J.  Ch.  562  ;  Dryden 
V.  Hanaway,  3  Md.  254;  Fleming  v.  McHale,  47  111.  282;  Honore  v. 
Hutchins,  8  Bush,  687 ;  Stucky  v.  Stucky,  30  N.  J.  Eq.  546 ;  Bates  v. 
Kelley,  80  Ala.  142;  Ward  v.  Matthews,  73  Cal.  13;  Caruthers  v.  Wil- 
liams, 21  Fla.  485;  Green  v.  Dietrich,  114  111.  636;  Bradley  v.  Luce,  99 
111.  234.  As  where  the  lender  takes  the  title  merely  as  security  for  his 
advance.  Wright  v.  Gay,  101  111.  233 ;  Powell  v.  Powell,  114  111.  329. 
See  also  Weekly  v.  Ellis,  30  Kans.  507;  Tenny  v.  Simpson,  37  Kans.  353; 
Wiggin  V.  Wiggin,  58  N.  H.  235. 

3  Marvin  v.  Brooks,  94  N.  Y.  71;  Leggett  ?;.  Leggett,  88  N.  C.  108; 
Brown  v.  Cave,  23  S.  C.  251;  Mims  v.  Chandler,  21  S.  C.  480;  Cook  c. 
Sherman,  4  McCrary  (U.  S.),  20. 

4  Kislerj;.  Kisler,  2  Watts,  323;  WUliard  i-.  Williard,  56  Pa.  St.  119; 
Loomis  V.  Loomis,  60  Barb.  22;  Stover  v.  Flack,  41  Barb.  162;  Thorner 
V.  Thorner,  18  Ind.  462;  Rogers  v.  Simmons,  55  111.  66;  Loomis  v.  Loomis, 
28  111.  454 ;  Green  v.  Cook,  2  111.  196;  Duffy  v.  Masterson,  44  N.  Y.  557; 
Whetham  v.  Clyde,  1  (Pa)  Leg.  Gaz.  R.  55.  But  see  Hidden  r.  Jordan, 
21  Cal.  92;  Green  v.  Drummoud,  3  Md.  71;  Meason  v.  Kaine,  63  Pa. 

157 


§  135.]  RESULTING   TRUSTS.  [CHAP.  V. 

and  none  is  made  on  his  account,  either  actually  or  construct- 
ively, he  cannot  claim  a  resulting  trust.^  As  where  a  father 
made  a  deed  to  a  son-in-law,  in  consideration  of  love  and 
affection  for  his  daughter,  no  trust  resulted.^  And  so  a  mere 
parol  declaration  by  one  that  he  is  buying  land  for  another 
is  not  sufficient  to  establish  a  resulting  trust ;  there  must  be 
some  proof  of  an  actual  or  constructive  payment  by  the  peivson 
claiming  such  a  trust.^  The  rule  is  otherwise  if  the  promise 
led  the  plaintiff  to  take  action  he  would  not  otherwise  have 
taken.  Then  the  breach  of  the  promise  becomes  2i  fraud,  and 
a  trust  may  exist.* 

§  135.  Again,  parol  proof  cannot  be  received  to  establish 
a  resulting  trust  in  lands  purchased  by  an  agent  and  paid  for 
by  his  own  funds,  no  money  of  the  principal  being  used  for 
the  payment ;  for  the  relation  of  principal  and  agent  depends 
upon  the  agreement  existing  between  them,  and  the  trust  in 
such  a  case  must  arise  from  the  agreement,  and  not  from  the 
transaction,  and  where  a  trust  arises  from  an  agreement,  it  is 
within  the  statute  of  frauds,  and  must  be  in  writing.^     This 

St.  335;  Smith  v.  Hollenback,  53  111.  223;  Lantry  v.  Lantry,  51  111.  451; 
Robinson  v.  Robinson,  45  Ark.  481;  Hunt  v.  Freedman,  63  Cal.  510, 
see  §  209.  Ward  v.  Spivey,  18  Fla.  847  ;  Follett  v.  Badeau,  26  Hun,  253; 
Lawrence  v.  Lawrence,  14  Or.  77.  A  trust  resulting  from  the  acts  of  the 
parties  will  not  be  converted  into  an  express  trust  by  the  agreement  of  the 
parties;  that  is,  it  will  not  be  any  the  less  a  resulting  trust,  and  it  will 
not  be  within  the  statute  of  frauds.     Cotton  v.  Wood,  25  Iowa,  43. 

1  Jackson  v.  Ringland,  4  Watts  &  S.  149;  Botsford  v.  Burr,  2  Johns. 
Ch.  408;  Lathrop  v.  Hoyt,  7  Barb.  60;  Dorsey  v.  Clark,  4  Har.  &  J,  551; 
Smith  V.  Smith,  3  Casey,  180;  Fischili  v.  Dumaresly,  3  Marsh.  23  ;  Sharp 
V.  Long,  4  Casey,  434;  Thompson  v.  Branch,  Meigs,  390  ;  Walker  v.  Brun- 
gard,  13  S.  &  M.  723;  Ensley  v.  Ballentine,  4  Humph.  233;  Lynn  v.  Lynn, 
5  Gil.  602;  Sample  v.  Coulson,  9  Watts  &  S.  62;  Peebles  v.  Reading,  8 
Ser.  &  R.  484. 

-  Thompson  v.  Thompson,  18  Ohio  St.  73. 

8  Ibid.;  Kisler  v.  Kisler,  2  Watts,  323;  Williard  v.  Williard,  56  Pa.  St. 
119. 

*  See  §  171  et  seq. 

^  Kennedy  v.  Keating,  34  Mo.  25 ;  WoodhuU  v.  Osborne,  2  Edw   Ch 
615;  Lathrop  v.  Hoyt,  7  Barb.  60;  2  Story,  Eq.  Jur.  §  1201  a;  Bartlett 
V.  Pickersgill,  1  Eden,  515;  4  Burr.  22;  1  Cox,  15;  4  East,  577;  Rastel  v. 
158 


CHAP,  v.]  PAROL   PROOF.  [§  136. 

rule  is  so  inflexible,  that  though  the  agent  may  be  indicted, 
and  convicted  of  perjury  in  denying  his  character  as  agent  in 
hi^  answer  under  oath,  the  court  cannot  decree  and  establish 
the  trust.i  But  if  an  agent  invest  his  principal's  money  in 
real  estate  without  his  knowledge,  or  if,  investing  the  money 
with  his  knowledge,  he  take  the  deed  in  his  own  name  with- 
out his  consent,  or  take  a  deed  in  a  form  contrary  to  the 
understanding,  there  will  be  a  resulting  trust.^  But  if  one 
standing  in  no  fiduciary  relation  obtains  another's  property 
wrongfully,  and  invests  it  in  land  in  his  own  name,  or  if  a 
clerk  appropriates  his  master's  money  and  buys  real  estate  in 
his  own  name,  there  is  no  resulting  trust.^ 

§  136.  In  England,  if  two  persons  join  in  a  purchase  and 
contribute  equally,  and  take  the  title  in  their  own  names, 

Hutchinson,  1  Dick.  44;  Lamas  v.  Bayly,  2  Vern.  627;  Atkins  v.  Rowe, 
Mose.  39;  O'Hara  v.  O'Neil,  2  Bro.  P.  C.  39;  Jackman  v.  Ringlaiid,  4 
Watts  &  S.  149;  Peebles  v.  Pteading,  8  Ser.  &R.  492;  Pinnock  v.  Clough, 
16  Vt.  507;  Flagg  v.  ]\Iann,  2  Sura.  546;  Walker  v.  Brungard,  13  Sm.  & 
M.  765;  Taliaferro  v.  Taliaferro,  6  Ala.  406;  Moore  v.  Green,  3  B.  Mon. 
407;  Fowke  v.  Slaughter,  3  A.  K.  Marsh.  57;  Dorsey  v.  Clarke,  4  Har. 
&  J.  551;  Pearson  v.  East,  36  Ind.  28;  Minot  v.  Mitchell,  30  Ind.  228; 
Arnold  v.  Cord,  16  Ind.  177;  Graves  v.  Ward,  2  Duv.  301;  Heacock  v. 
Coatesworth,  Clarke,  84;  Burden  v.  Shei-idan,  36  Iowa,  125;  Nestal  v. 
Schmid,  29  N.  J.  Eq.  460.  But  where  an  attorney  purchased  property 
sold  upon  an  execution  in  favor  of  his  client  at  a  grossly  inadequate 
price,  it  was  held  that  he  was  a  trustee  for  his  principal.  Howell  v. 
Baker,  4  Johns.  Ch.  118.  See  Wade  v.  Pettibone,  11  Ohio,  57;  14  Ohio, 
557. 

1  Bartlett  v.  Pickersgill,  1  Eden,  515;  King  v.  Boston,  4  East,  572. 

2  Day  V.  Roth,  18  N.  Y.  448;  Bridenbecker  v.  Lowell,  32  Barb.  9;  Pugh 
V.  Pugh,  9  Ind.  132;  Rothwell  v.  Dewees,  2  Black,  613;  Bruce  v.  Ronly, 
18  111.  67;  FoUansbe  v.  Kilbreth,  17  111.  522;  Squire's  App.,  70  Pa.  St. 
268;  Seichrist's  App.,  16  P.  F.  Smith,  237.  So  if  he  take  the  deed  in  his 
wife's  name,  a  knowledge  by  the  principal  that  the  deed  is  so  made  will 
not  affect  the  trust.     Bostleman  v.  Bostleman  and  wife,  24  N.  J.  Eq.  103. 

8  Ensley  v.  Ballentine,  4  Humph.  233;  Campbell  v.  Drake,  4  Ired.  Eq. 
94.  But  where  A.  embezzled  B.'s  money  and  invested  it  in  stock  in  the 
name  of  C,  a  mere  volunteer,  a  resulting  trust  was  enforced  against  C.  in 
favor  of  B.  Bank  of  America  v.  Pollock,  4  Edw.  Ch.  415;  and  see  Pas- 
coag  Bank  v.  Hunt,  3  Edw.  215;  ante,  §  128.  See  also  Newton  v.  Porter, 
5  Lansing,  417. 

159 


§  136.]  RESULTING   TRUSTS.  [CHAP.  V. 

there  is  no  reason  to  presume  a  resulting  trust,  and  the  two 
are  joint  tenants,  the  survivor  taking  the  whole  jure  accre- 
scendi.^  And  so  if  two  contract  for  a  purchase  to  them  and 
their  heirs,  paying  equal  proportions,  and  one  dies,  the  court 
will  order  a  speciiic  performance  by  a  conveyance  to  the  sur- 
vivor alone.2  But  the  court  lays  hold  of  every  circumstance 
to  defeat  the  joint  tenancy  and  convert  it  into  a  tenancy  in. 
common.^  Thus,  where  two  tenants  in  common  of  a  joint 
mortgage  term  purchase  the  equity  of  redemption,*  or  several 
engage  in  a  joint  undertaking,  or  partnership,  or  trade,  or 
speculation,^  or  several  purchase  an  estate  and  pay  equally, 
but  one  improves  the  estate  at  his  own  cost,^  equity  will  con- 
strue them  to  be  tenants  in  common  and  not  joint  tenants. 
In  this  country,  title  by  joint  tenancy  is  very  mtlch  reduced 
in  extent,  and  the  incident  of  survivorship  is  almost  entirely 
destroyed  by  statutes,  except  in  the  case  of  trustees,  execu- 
tors, and  others,  in  whom  such  a  tenancy  is  necessary  for  the 
execution  of  their  trusts." 

1  Robinson  v.  Preston,  4  K.  &  J.  505;  Bone  v.  Pollard,  24  Beav.  288; 
Moyse  w.  Gyles,  2  Vein.  385;  Hayes  v.  Kingdome,  1  Yern.  33;  York  v. 
Eaton,  2  Freem.  23;  Aveling  v.  Knipe,  19  Ves.  441;  Rigden  v.  Vallier,  3 
Atk.  735;  Lake  v.  Gibson,  1  Eq.  Ca.  Ab.  291;  Anon.,  Carth.  15;  Rea  v. 
Williams,  Sagd.  V.  &  P.  (Uth  ed.)  p.  [697];  Thicknesse  v.  Vernon,  2 
Freem.  84. 

2  Aveling  v.  Knipe,  19  Ves.  441. 

8  Robinson  v.  Preston,  4  K.  &  J.  505;  Tompkins  v.  Mitchell,  2  Rand. 
428;  Brothers  v.  Porter,  6  B.  Mon.  106;  Barribeau  v.  Brant,  17  How.  43. 

4  Edwards  v.  Fashion,  Pr.  Ch.  332;  Morly  v.  Bird,  3  Ves.  631;  Rigden 
V.  Vallier,  3  Atk.  734;  Vickers  v.  Cowell,  1  Beav.  629;  Partridge  v.  Paw- 
lett,  1  Atk.  467;  Anon.,  Carth.  16;  Petty  v.  Styward,  1  Ch.  R.  57;  Ran- 
dall V.  Phillips,  3  Mason,  378. 

s  Lake  v.  Gibson,  1  Eq.  Ca.  Ab.  290;  3  P.  Wms.  158;  York  v.  Eaton, 
2  Freem.  23;  Jackson  v.  Jackson,  9  Ves.  597  n. ;  Lyster  v.  Dolland,  1  Ves. 
Jr.  434 ;  Jeffreys  u.  Small,  1  Vern.  217;  Gaines  v.  Grant,  5  Binn.  119; 
Duncan  v.  Forrer,  6  Binn.  193;  Sigourney  v.  Munn,  7  Conn.  11;  Overton 
V.  Lacy,  6  Monroe,  13;  Deloney  v.  Hutcheson,  2  Rand.  183  ;  Cuyler  v. 
Bradt,  2  Ca.  C.  E.  326;  Pugh  v.  Currie,  5  Ala.  446;  McAllister  v.  Mont- 
gomery, 3  Hayw.  94;  Failey  ?'.  Shippen,  Wythe,  135.  See  Appleton  v. 
Boyd,  7  Mass.  131;  Kinsley  v.  Abbott,  19  Me.  430. 

6  Lake  v.  Gibson,  1  Eq.  Ca.  291. 

f  See  4  Kent,  Com.  396  (11th  ed.). 
160 


CHAP.  T.]  PAROL   PROOF.  [§  137. 

§  137.  The  transaction  out  of  which  a  trust  results  may- 
be proved  by  paroi.^  The  statute  of  frauds  extends  to  and 
embraces  only  trusts  created  or  declared  by  the  parties,  and 
does  not  affect  trusts  arising  by  operation  of  law.^  Indeed, 
such  trusts  are  specially  excepted  in  the  statute  of  frauds  of 
most  States.  The  exception,  however,  was  omitted  in  the 
statute  of  Rhode  Island ;  but  Mr.  Justice  Story  held  that  the 
omission  was  immaterial,  as  such  trusts  were  excepted  in 
the  nature  of  things.^  It  follows  that  a  party  setting  up  a 
resulting  trust  may  prove  by  parol  the  agreements  under 
which  the  estate  was  purchased,  and  he  may  prove  by  parol 
the  actual  payment  of  the  purchase-money  by  himself,  or  in 
his  behalf,  although  the  deed  states  it  to  have  been  paid  by 
the  grantee  in  the  conveyance.*     And  although  the  holder  of 

1  Livermore  v.  Aldrich,  5  Ciish.  435;  Boyd  v.  McLean,  1  Johns.  Ch. 
582,  Botsford  I'.  Burr,  2  Johns.  Ch.  405;  Verplank  v.  Caines,  1  Johns. 
Ch.  57;  Page  v.  Page,  8  N.  H.  187;  Scoby  v.  Blanchard,  3  N.  H.  170; 
Pritchard  v.  Brown,  4  N.  H.  397;  (iarduer  Bank  v.  Wheaton,  8  Greenl. 
373,  Powell  V.  Monson  &  Brim.  Manuf.  Co.,  3  Mason,  347;  Elliott  y.  Arm- 
strong, 3  Blackf.  199;  Jennison  v.  Graves,  Id.  441,  Blair  v.  Bass,  4  id. 
550;  Snelling  v.  Utterback,  1  Bibb,  609;  Foots  v.  Bryant,  47  N.  Y.  544; 
Peifferw.  Lytle,  58  Pa.  St.  386;  McGinity  v.  LIcGinity,  6  Pa.  St.  38; 
Nixon's  App.,  63  Pa.  St.  277;  Byers  v.  Wackman,  16  Ohio,  80,  440 ;  Faris 
V.  Dunn,  7  Bush,  276;  Caldwell  v.  Caldwell,  7  Bush,  515,  Morgan  v.  Clay- 
ton, 61  111.  35;  Knox  v.  McFarran,  4  Col.  586;  Learned  v.  Tritch,  6 
Col.  432.  Otherwise  in  Michigan.  Groesbeck  v.  Seeley,  13  Mich.  329; 
and  see  Barbin  v.  Gasford,  15  La.  An.  539. 

2  Ibid.  ;  Ross  v.  Hegeman,  2  Edw.  Ch.  373;  Larkin  v.  Rhodes,  5 
Porter,  196;  Enos  v.  Hunter,  4  Gil.  211;  Smith  i'.  Sackett,  5  Gilm.  544; 
Foote  v.  Bryant,  47  N.  Y.  544;  Black  v.  Black,  4  Pick.  238;  Bryant  v. 
Hendricks,  5  Iowa,  256;  Judd  v.  Haseley,  22  Iowa,  428;  Ward  v.  Arm- 
strong, 84  111.  151;  Gale  v.  Harby,  20  Fla.  171. 

3  Iloxie  V.  Carr,  1  Sum.  187. 

*  De  Peyster  t'.  Gould,  2  Green,  Ch.  474;  Dismukes  v.  Terry,  Walk. 
197;  Peabody  y.  Tarbell,  2  Cush.  232;  Barron  v.  Barron,  24  Vt.  375; 
Smith  V.  Burnham,  3  Sum.  438;  Malin  v.  Malin,  1  Wend.  626;  Harder  v. 
Harder,  2  Sandf.  Ch.  17;  Peirce  v.  McKeehan,  3  Barr,  136;  Lloyd  v. 
Carter,  17  Pa.  St.  216;  Peebles  v.  Reading,  8  Serg.  &  R.  484;  Millard  v. 
Hathaway,  27  Cal.  119;  Lyford  v.  Thurston,  16  N.  II.  399;  Bayles  v. 
Baxter,  22  Cal.  575;  Cooper  v.  Skeele,  14  Iowa,  578.  In  Kirk  »>.  Webb,  Pr. 
Ch.  84,  the  court  refused  to  admit  parol  evidence  to  control  the  recitals 
of  the  deed  as  to  the  payment  of  the  consideration,  and  this  decision  was 
VOL.  I.  — 11  161 


§  137.]  RESULTING   TRUSTS.  [CHAP.  V. 

the  legal  title  has  fraudulently  or  by  mistake  made  a  declara- 
tion that  he  holds  the  property  for  some  other  person/  or 
states  it  to  be  for  the  use  of  the  grantor,^  and  although  the 
trust,  and  all  the  circumstances  out  of  which  it  arises,  may  be 
denied  under  oath  in  the  answer,  yet  the  facts  may  all  be 
proved  by  parol  in  opposition  to  the  answer.^  In  such  case 
the  trust  must  be  clearly  alleged  in  the  bill,  not  only  in  terms, 
but  all  the  facts  must  be  set  out  from  which  the  trust  is 
claimed  to  result.*  General  vague  statements  of  a  testator 
that  the  land  he  owned  was  the  "  security  or  property  held  in 
trust  by  him  for  the  payment  of  the  trust  fund,"  will  not  be 
sufficient  to  impress  a  trust  on  the  property  in  the  absence  of 
clear  evidence  that  trust  funds  were  used  in  the  purchase  of 
the  land.^     The  facts  in  all  cases  must  be  proved  with  great 

followed  in  Heron  v.  Heron,  Pr.  Ch.  163;  Freem.  248;  Skitt  r.  Whitmore, 
Freem.  280;  Kinder  v.  jNIiller,  Pr.  Ch.  172;  Hooper  v.  Eyles,  2  Vern.  180; 
Newlon  V.  Preston,  Pr.  Ch.  103;  Cox  v  Bateman,  2  Ves.  19;  Ambrose  v. 
Ambrose,  1  P.  Wms.  321;  Deg  v.  Deg,  2  P.  Wms.  411;  but  the  rule  has 
been  changed,  and  the  doctrine  stated  in  the  text  is  now  established 
beyond  controversy.  Bartlett  v.  Pickersgill,  1  Eden,  51.);  Lench  i\ 
Lench,  10  Ves.  517;  Groves  v.  Groves,  3  Y.  &  J.  163.  See  2  Story,  Eq. 
Jur.  §  1201,  and  notes;  Livermore  i'.  Aldrich,  5Cush.  435;  Connor  v.  Fol- 
lansbee,  59  N.  H.  125. 

1  Hanson  v.  First  Presbyterian  Church,  1  Stock.  441. 

2  Cotton  V.  Wood,  25  Iowa,  43. 

8  Cooth  V.  Jackson,  6  Ves.  39;  Buck  v.  Pike,  2  Fairf.  24;  Baker  p. 
Vining,  30  Me.  121 ;  Page  v.  Page,  8  N.  H.  187 ;  Moore  i;.  Moore,  38 
N.  H.  382,  Boyd  v.  McLean,  1  Johns.  Ch.  582;  Botsford  v.  Burr,  2 
Johns.  Ch.  405;  Swinburne  v.  Swinburne,  28  N.  Y.  568;  Snelling  v. 
Utterback,  1  Bibb,  G09 ;  Lloyd  i'.  Lynch,  28  Pa.  St.  419;  Letcher  v. 
Letcher,  4  J.  J.  Marsh.  590;  Miller  !\  Stokely,  5  Ohio  St.  194;  Elliott 
V.  Armstrong,  2  Blackf.  198;  Jenison  v.  Graves,  Id.  440;  Blair  v.  Bass, 
4  id.  540;  Larkins  v.  Rhodes,  5  Porter,  196;  Farringer  v.  Ramsey,  2 
Md.  365;  Greer  v.  Baughman,  13  Md.  257;  Ensley  v.  Ballentine,  4 
Humph.  233;  Paine  v.  Wilcox,  16  Wis.  202;  Olive  v.  Dougherty,  3  Iowa, 
371;  Vandever  v.  Freeman,  20  Tex.  333;  Pugh  v.  Bell,  1  J.  J.  Marsh. 
399. 

*  Rowell  V.  Freese,  23  Me.  182;  Hickey  v.  Young,  1  J.  J.  Marsh.  1; 
Gascoigne  v.  Tliwing,  1  Vern.  366;  Rider  r.  Kidder,  10  Ves.  3G4;  Groves 
V.  Groves,  3  Y.  &  J.  163;  Halcott  o.  Morkant,  Pr.  Ch.  168;  Goodright  v. 
Hodges,  1  Watk.  Corp.  229;  Willis  v.  Willis,  2  Atk.  71. 

6  Cuming  v.  Robins,  39  N.  J.  Eq.  46. 
162 


CHAP,  v.]  PAROL   PROOF.  [§  137. 

clearness  and  certainty,^  especially  when  the  claim  has  the 
perfume  of  statements  ;  ^  and  facts  that  only  base  a  conjecture 
that  the  conditions  of  a  resulting  trust  existed,  are  insufficient.^ 
The  certainty  required,  however,  is  only  such  as  is  sufficient 
to  satisfy  the  jury  of  the  existence  of  the  trust ;  and  it  is  error 
to  charge  that  the  "  clearest  and  most  positive  proof "  must 
be  given.*  For  this  purpose  all  competent  evidence  is  ad- 
missible, as  the  admissions  of  the  nominal  purchaser  and 
grantee  in  the  deed,  recitals  in  the  deed  and  other  proper 
documents,  and  even  circumstantial  evidence,  as  that  the 
means  of  the  nominal  purchaser  were  so  limited  that  it  was 
impossible  for  him  to  pay  the  purchase-money.^      But  loose 

1  Cuming  v.  Robins,  39  N.  J.  Eq.  46;  Slocnmb  v.  Marshall,  2  Wash. 
C.  C.  397;  Newton  v.  Preston,  Pr.  Ch.  103;  Wright  v.  King,  Harr.  Ch. 
12;  Enos  v.  Hunter,  4  Gilm.  211;  Carey  f.  Callan,  6  B.  Mon.  44;  O'Hara 
V.  O'Neil,  2  Eq.  Ca.  Ab.  475;  Cottington  v.  Fletcher,  2  Atk.  155;  Am- 
brose V.  Ambrose,  1  P.  Wms.  321;  Hyden  v.  Hyden,  n  Baxter  (Tenn.), 
406:  Thomas  v.  Sandford,  49  Md.  181  ;  Johnson  v.  Richardson,  44  Ark. 
365;  Harvey  v.  Pennybacker,  4  Del.  Ch.  445;  Green  v.  Dietrich,  114  111. 
636;  Witts  v.  Horney,  59  Md.  584;  Philpot  w.  Penn,  91  Mo.  38;  Rogers 
r.  Rogers,  87  Mo.  257;  Shaw  v.  Shaw,  86  Mo.  594;  Modrell  v.  Riddle,  82 
Mo.  31;  Parker  v.  Snyder,  31  N.  J.  Eq.  164;  Brickell  v.  Earley,  115 
Pa.  St.  473.  As  to  wliat  facts  are  competent  and  necessary  to  be  proved, 
see  Hunter  v.  Marlboro',  2  Wood.  &  M.  168;  Morey  v.  Herrick,  18  Pa.  St. 
128  ;  Blyholder  v.  Gibson,  18  Pa.  St.  134;  Farringer  v.  Ramsey,  4  ]\Id.  Ch. 
33;  Malin  v.  Malin,  1  Wend.  626 ;  Harder  v.  Harder,  1  Sandf.  17;  Snelling 
V.  Utterback,  1  Bibb,  609;  Freeman  v.  Kelly,  1  Hoff.  90  ;  Baker  ;;.  Vining, 
30  Me.  128;  Clarke  v.  Quackenboss,  27  111.  260;  Nelson  v.  Warrall,  20 
Iowa,  409;  White  v.  Weldon,  4  Nev.  280;  Stall  v.  Cincinnati,  16  Ohio  St. 
169;  Browne  I'.  Stamp,  21  :Md.  328;  Holder  ».  Nunnelley,  2  Cold.  288; 
Childs  V.  Gramold,  19  Iowa,  362;  Cutler  v.  Tuttle,  19  N.  J.  Ch.  560; 
Parmlee  i--.  Sloan,  37  Ind.  469;  Phelps  v.  Seeley,  22  Grat.  573;  Shepard 
V.  Pratt,  32  Iowa,  296. 

2  Heneke  v.  Floring,  114  111.  554;  McKeown  v.  McKeown,  33  N.  J. 
Eq.  384.  3  Railsback  v.  Williamson,  88  111.  497. 

*  Neyland  v.  Bendy.  69  Tex.  711. 

5  Willis  V.  Willis,  2  Atk.  71 ;  Wilkins  v.  Stevens,  1  Y.  &  C  Ch.  Ca. 
431 ;  Lench  r.  Lench,  10  Ves.  518;  Benger  v.  Drew,  1  P.  Wms.  780; 
Strimpfler  r.  Roberts,  18  Pa.  St.  283;  Baumgartner  v.  Guessfeld,  38  j\Io. 
36;  Brown  r.  Petney.  3  111.  468;  Farrell  v.  Lloyd,  69  Pa.  St.  239;  Sayre  i-. 
Frederick,  1  C.  E.  Green,  205;  Gascoigne  v.  Thwing,  1  Vroom,  366; 
Graves  v.  Graves,  3  Y.  &  J.  170;  Mitchell  v.  O'Neil,  4  Nev.  504. 

163 


§  138.]  EESULTING   TRUSTS.  [CHAP.  V. 

and  equivocal  facts  ought  not  to  control  the  evidence  of 
deeds ;  and  two  witnesses,  or  one  witness  with  corroborating 
circumstances,  are  required  to  control  an  answer  under  oath. 
And  proof  of  mere  admissions  of  one  that  he  purchased  for 
another,  without  proof  of  some  previous  arrangement  or 
advance  of  money  by  such  other,  is  insuthcient  to  create  a 
resulting  trust.^ 

§  138.  It  has  been  stated  by  some  writers  that  after  the 
death  of  the  supposed  nominal  purchaser,  parol  proof  alone 
could  not  be  admitted  to  control  the  express  declaration  of 
the  deed  ;  ^  but  the  cases  relied  upon  are  the  cases  before 
cited  to  the  point  that  parol  proof  is  inadmissible,  both 
before  and  after  the  death  of  the  supposed  nominal  purchaser. 
These  cases  are  overruled ;  and  it  would  seem  upon  principle 
that  the  death  of  the  nominal  purchaser  cannot  affect  the 
admissibility  of  parol  testimony,  whatever  effect  it  may  have 
upon  its  weight.^  Analogous  to  this  matter  is  the  question 
whether  trust  money  can  be  followed  into  land  by  parol 
evidence ;  and  it  is  clearly  established  that  it  may,  on  the 
ground  that  a  purchase  with  trust  money  is  virtually  a  pur- 
chase paid  for  by  the  cestui  que  trusty  and  such  a  purchase 
is  a  trust  by  operation  of  law,  and  not  within  the  statute 
of  frauds.*     And  if   a  trustee  pay  for  property  out  of   the 

1  Sidle  V.  Walter,  5  Watts,  389;  and  see  Sample  v.  Coulson,  9  W.  &  S. 
62.  The  admission  of  a  trustee  that  he  purchased  certain  property  with  the 
trust  fund  is  competent  evidence  to  raise  a  resulting  trust  for  the  cestui 
que  trust  in  that  property.     Harrisburg  Bank  v.  Tyler,  3  Watts  &  S.  373. 

2  Sanders  on  Uses  and  Trusts,  259;  note  to  Lloyd  v.  Spillett,  2  Atk. 
150;  Roberts  on  Statute  of  Frauds,  99. 

3  Lewin  on  Trusts,  138  (.5th  Lond.  ed.),  2  Mad.  Ch.  Pr.  141 ;  Sugd.  Y. 
&  P.  136  (9th  ed.);  Lench  v.  Lench,  10  Ves.  517;  2  Story,  Eq.  Jur. 
§  1201,  n.;  Livermore  D.  Aldrich,  5  Cush.  435;  Unitarian  So.  v.  Wood- 
bury, 14  Me.  281;  De  Peyster  v.  Gould,  2  Green,  Ch.  474;  Harrisburg 
Bank  v.  Tyler,  3  W.  &  S.  373 ;  Harder  v.  Harder,  2  Sand.  Ch.  17 ; 
IMcCammon  v.  Petitt,  3  Sneed,  242;  Fausler  v.  Jones,  7  Ind.  277;  Neill  v. 
Keese,  5  Tex.  23;  Freeman  i;.  Kelly,  1  Hoff.  90;  Richardson  v.  Taylor, 
45  Ark.  472. 

*  Lench  v.  Lench,  10  Ves.  517;  Trench  r.  Harrison,  17  Sim.  Ill;  ante, 
§§  127,  128. 

164 


CHAP,  v.]  PAROL    PROOF.  [§  139. 

trust  fund,  and  take  the  deed  in  the  name  of  another, 
the  trust  results  to  the  cestui  que  trust,  and  not  to  the 
trustee.^ 

§  139.  It  follows  that  as  a  resulting  trust  may  be  shown 
by  parol  proof,  as  a  presumption  of  law  arising  out  of  the 
transaction,  so  the  presumption  may  be  rebutted  by  parol 
proof  showing  that  no  trust  was  intended  by  the  parties  at 
the  time  of  the  transaction,^  and  that  it  was  the  intention  to 
confer  the  beneficial  interest  upon  the  supposed  nominal  pur- 
chaser. As  the  resulting  trust  is  mere  matter  of  equitable 
presumption,  it  may  be  rebutted  by  facts  that  negative  the 
presumption;  and  whatever  facts  appear  tending  to  prove  that 
it  was  intended  that  the  nominal  pui-chaser  should  take  the 
beneficial  interest  as  well  as  the  legal  title,  negatives  the  pre- 
sumption.3  The  presumption  may  be  negatived  as  to  part  of 
the  estate,  and  prevail  in  parfc.^  The  presumption,  however, 
is  in  favor  of  the  trust  resulting  to  the  party  paying  the  con- 
sideration, and  the  burden  of  proof  is  upon  the  mere  nominal 
purchaser  to  show  that  he  was  intended  to  have  some  bene- 

1  Russell  V.  Allen,  10  Paige,  249 ;  Wynn  v.  Sharer,  23  Ind.  573. 

2  Warren  i*.  Steer,  112  Pa.  St.  63.5;  declarations  made  afterwards  and 
not  bearing  on  the  intent  at  the  time  of  purchase  cannot  affect  the  title. 

3  Rider  v.  Kidder,  10  Ves.  364;  Benbow  v.  Townsend,  1  M.  &  K.  508; 
Goodright  v.  Hodges,  1  Watk.  Cop.  227;  Lofft,  230;  Rundle  v.  Rundle,  2 
Vern.  252;  Taylor  v.  Taylor,  1   Atk.   386;  Redington  v.   Redington,   3 
Ridg.  106;  Beecher  v.  Major,  2  Drew.  &  Sra.  431;  Garrick  v.   Taylor,  29 
Beav.  79;  4  De  G.,  F.  &  J.  159;  Bellasis  v.  Compton,  2  Vern.  294;  Mad- 
dison  V.  Andrew,  1  Ves.  58;  Baker  y.  Vining,  30  Me.  126;  Page  v.  Page, 
8  N.  H.  189;  Botsford  v.  Burr,  2  Johns.   Ch.  405;  White  v.   Carpenter,  2 
Paige,  217;  Jackson  ;•.  Feller,  2  Wend.  465;  Steere  v.  Steere,  5  Johns.  Ch 
18;  Creed  v.  Lancaster  Bank,  1  Ohio  St.  1;  Sewell  v.  Baxter,  2  Md.  Ch 
448;  Hays  v.   HoUis,  8   Gill,  309;  McGuire  v.   McGowen,  4  Des.    487 
Elliott  V.  Armstrong,  2  Blackf.  199;  Philips  v.   Crammond,  2  Wash.   C 
C.  441 ;  Myers  «.  Myers,  1  Casey,  100;  Squire  v.   Harder,    1   Paige,  494 
Ledge  v.  Morse,  16  Johns.  199;  Smith  v.  Howell,  3  Stockt.  122;  Bayles  v 
Baxter,  22  Cal.  375;  McCue  r.  Gallagher,  23  Cal.  51;  Byers  v.   Danley, 
27  Ark.  77;  Hays  v.  Quay,  68  Pa.  St.  263;  Murphy  v.  Peabody,  63  Ga. 
522;  Kelsey  v.  Snyder,  118  111.  544. 

*  Benbow  v.  Townsend,  1  M.  &  K.  506;  Rider  v.  Kidder,  10  Ves.  360 ; 
Lane  v.  Dighton,  Amb.  409;  Pinney  v.  Fellows,  15  Vt.  525. 

165 


§  141.]  RESULTING   TRUSTS.  [CHAP.  V. 

ficial  interest.^  The  burden  of  proof  on  the  whole  case,  how- 
ever, rests  on  the  one  who  seeks  to  establish  a  resulting  t]"ust, 
to  show  by  clear  evidence  the  necessary  facts.^ 

§  140.  And  when  a  clear  understanding  is  had  at  the  time 
the  purchase  is  made,  the  money  paid,  and  the  deed  taken, 
by  which  understanding  the  nominal  purchaser  was  to  have 
both  the  legal  and  the  beneficial  interest,  it  is  incompetent  for 
the  person  who  paid  the  purchase-money  to  put  a  different 
construction  upon  the  transaction  at  a  subsequent  time,  and 
claim  a  resulting  trust  in  the  estate  contrary  to  the  under- 
standing and  intention  at  the  time.^  And  if  the  nominal  pur- 
chaser, under  such  circumstances,  should  afterwards  agree  to 
hold  in  trust  for,  or  to  execute  a  conveyance  to  the  person  who 
paid  the  money,  courts  would  not  enforce  the  agreement,  if  it 
was  without  a  new  consideration  or  voluntar}'.*  So  if  the 
trust  is  declared  in  writing  at  the  time  of  the  transaction 
there  can  be  no  resulting  trust,  as  the  one  precludes  the 
other  ;^  or  if  the  nominal  purchaser  stipulates  for  somethmg 
out  of  the  transaction  inconsistent  with  the  trust.^ 

§  141.  Courts  will  not  enforce  a  resulting  trust  after  a 
great  lapse  of  time,'  or  laches  on  the  part  of  the  supposed 
cestui  que  trust,  especially  when  it  appears  that  the  supposed 
nominal  purchaser  has  occupied  and  enjoyed  the  estate.**     But 

1  Dudley  v.  Bosworth,  10  Humph.  12;  2  Sugd.  Y.  &  P.   139  (9th  ed.). 

2  Philpot  V.  Peun,  91  Mo.  44;  Jackson  v.  Wood,  88  Mo.  70;  Johuson 
V.  Quarles,  46  Mo.  423. 

3  Groves  i'.  Groves,  3  Y.  &  J.  172;  Hunt  v.  Moore,  6  Cush.  1;  Wliite 
V.  Sheldon,  4  Nev.  280;  Robles  v.  Clarke,  25  Cal.  317.  *  Ibid. 

5  Clark  V.  Burnham,  2  Story,  1;  Anstice  i\  Brown,  6  Paige,  448;  Leg- 
gett  V.  Dubois,  5  Paige,  114;  Alexander  v.  AVarrance,  17  Mo.  2o0;  Mercer 
1-.  Stark,  1  Sm.  &  M.  479;  Dennison  c.  Goehring,  7  Barr,  175. 

6  Dow  V.  Jewell,  21  N.  H.  470. 

''  James  v.  James,  41  Ark.  303  (more  than  20  years). 

8  Delane  v.  Delane,  7  Bro.  P.  C.  279;  Clegg  r.  Edmonson,  8  De  G..  M. 
&  G.  787;  Groves  v.  Groves,  3  Y.  &  J.  172;  Peebles  v.  Reading,  8  Ser.  & 
R.  484;  Graham  v.  Donaldson,  5  Watts,  471;  Haines  v.  O'Conner,  10 
Watts,  315;  Lewis  v.  Robinson,  Id.  338;  Buckford  v.  Wade,  17  Ves.  97; 
Robertson  v.  Mackliu,  3  Hayw.  70;  Strimpfler  v.  Roberts,  IS  Pa.  St.  283; 

166 


CHAP,  v.]  STATUTES.  [§  142. 

if  the  trust  is  admitted,  and  there  has  been  no  adverse  holding, 
lapse  of  time  is  no  bar,i  ^mj  laches  will  not  be  allowed  to 
avail  as  a  defence,  where  fraud  has  been  practised  on  the 
cestui  to  keep  her  in  ignorance  of  her  rights  until  just  before 
filing  the  bill.  Any  excuse  for  delay  that  takes  hold  of  the 
conscience  of  the  chancellor  and  makes  it  inequitable  to 
interpose  the  bar  is  sufficient.^ 

§  142.  The  legislature  of  New  York  has  abolished  trusts 
resulting  from  the  payment  of  the  consideration  by  one  and 
the  taking  the  title  in  the  name  of  another,  except  in  cases 
where  the  nominal  grantee  has  taken  the  deed  without  the 
knowledge  and  consent  of  the  party  paying  the  money,  or 
except  the  purchase  is  made  with  another's  money  in  viola- 
tion of  some  duty  or  trust.^  But  the  statute  saves  the  rights 
of  creditors  of  the  party  paying  the  purchase-money  and 
taking  the  title  in  the  name  of  another.*  If  such  a  purchase 
is  a  fraud  upon  creditors,  they  may  enforce  the  trust  in  equity, 
though  the  original  purchaser  and  payer  of  the  money  would 
have  no  remedy  ;^  but  if  the  debt  is  barred  by  a  discharge  in 
Sunderland  v.  Sunderland,  19  Iowa,  325;  Douglass  v.  Lucas,  63  Pa.  St.  11; 
Best  V.  Campbell,  62  Pa.  St.  478;  Brown  r.  Guthrie,  27  Texas,  610  ;  Hall 
V.  Doran,  13  Iowa,  368;  Trafford  t-.  Wilkinson,  3  Tenn.  Ch.  701;  New- 
man V.  Early,  Id.  714.  And  see  Miller  v.  Blose,  30  Grat.  (Va.)  744 ;  Jen- 
nings V.  Shacklett,  Id.  765;  King  v.  Purdee,  6  Otto,  90  ;  Midmer  v.  Mid- 
mer,  26  N.  J.  Eq.  299;  Smith  w.  Patton,  12  W.  Va.  541;  McGivney  v. 
McGivney,  142  Mass.  156,  160. 

1  Dow  V.  Jewell,  18  N.  H.  340.         2  Harris  v.  Mclntyre,  118  111.  275. 

8  Linsley  v.  Sinclair,  24  Mich.  380. 

4  Rev.  Stat.  1859,  part  II.  (Vol.  III.  p.  15),  c.  1,  art.  6,  §§  52,  53,  57; 
Bodine  v.  Edwards,  10  Paige,  504;  Brewster  ?>.  Power,  10  Paifje,  562;  Wil- 
link  V.  Vanderveer,  1  Barb.  699;  Norton  v.  Storer,  8  Paige,  222;  Reid  v. 
Fitch,  11  Barb.  399;  Lounsbury  v.  Purdy,  16  Barb.  376;  18  N.  Y.  515; 
Jencksr.  Alexander,  11  Paige,  619;  Watson  v.  Le  Row,  6  Barb.  481 ;  Rus- 
sell V.  Allen,  10  Paige,  2.j0;  Siemon  i'.  Schurck,  29  N.  Y.  598;  Swinburne 
V.  Swinburne,  28  N.  Y.  568;  Stover  v.  Flock,  21  Barb.  162;  Safford  r. 
Hind,  39  Barb.  625;  Buffalo  R.  R.  Co.  v.  Lampson,  47  Barb.  533;  Gilbert 
V.  Gilbert,  1  Keyes  (N.  Y.),  159.  See  the  comments  of  Church,  Ch.  J., 
upon  this  last  case  in  Foote  v.  Bryant,  47  N.  Y.  561 ;  and  see  Gilbert  v. 
Gilbert,  2  N.  Y.  Dec.  256;  Farrell  v.  Lloyd,  69  Pa.  St.  239. 

6  Ibid.:  Jackson  v.  Forrest,  2  Barb.  Ch.  576;  McCartney  v.  Bostwick, 
32  N.  Y.  53. 

167 


§  143.]  RESULTING   TRUSTS.  [CHAP.  V. 

bankruptcy,  the  creditor's  lien  is  gone.^  In  Kentucky,  trusts 
resulting  from  the  payment  of  the  money  and  the  purchase 
in  the  name  of  another  are  abolished,  but  an  action  is  given 
for  the  recovery  of  the  money  paid.^  In  Massachusetts,  the 
creditors  of  such  a  purchaser,  taking  the  title  in  the  name  of 
a  third  person,  may  levy  their  execution  upon  the  land,  in 
the  same  manner  as  if  the  purchaser  had  taken  tlie  title 
directly  to  himself.^  And  so  in  New  Hampshire.^  The  stat- 
ute of  New  York  has  been  strictly  construed,  and  therefore 
if  A.  makes  a  purchase,  and  pays  the  money,  and  takes  the 
title  in  the  name  of  B.,  upon  a  parol  trust  for  C,  it  is  not 
within  the  statute ;  and  C.  may  enforce  the  trust  as  against 
B.^  Statutes  similar  to  the  statute  of  New  York  have  been 
passed  in  Michigan^  and  Wisconsin.'^  In  Louisiana,  express 
trusts  have  been  abolished ;  but  trusts  arising  from  the  nature 
of  transactions,  or  by  implication  of  law,  are  still  enforced  by 
the  courts.^ 

§  143.  As  before  stated,  if  a  purchaser  of  an  estate  pays 
the  consideration  money,  and  takes  the  title  in  the  name  of 
a  stranger,  the  presumption  is  that  he  intended  some  benefit 
for  himself,  and  a  resulting  trust  arises  for  him ;  ^  but  if 
the  purchaser  take  the  conveyance  in  the  name  of  a  wife  or 
child  or  other  person,  for  whom  he  is  under  some  natural, 
moral,  or  legal  obligation  to  provide,  the  presumption  of  a 

1  Ocean  Nat.  Bank  v.  Alcott,  46  N.  Y.  12. 

2  Martin  v.  Martin,  5  Bush,  47;  as  to  the  rule  in  Minnesota,  see  Bur- 
pee V.  Pavitt,  14  Minn.  424. 

3  Gen.  Stat.  1860,  c.  103,  §  1;  Stat.  1844,  c.  107;  Foster  v.  Duranl,  2 
Gray,  5.38;  amending  the  law  as  ruled  in  How  v.  Bishop,  3  Met.  26; 
Clark  V.  Chamberlain,  12  Allen,  2.37. 

*  Hutchins  v.  Heywood,  .50  N.  H.  591. 

•^  Siemon  v.  Austin,  33  Barb.  9;  Siemon  i'.  Schurck,  29  N.  Y.  598; 
Foote  V.  Bryant,  44  N.  Y.  544. 

6  R.  S.  1846,  c.  63,  §  4;  Groesbeck  v.  Seeley,  13  Mich.  329;  Fisher  v. 
Fobes,  22  Mich.  454 

7  R.  S.  1858,  c.  84,  §§  7-9. 

8  Gaines  v.  Chew,  2  How.  619;  McDonough's  Ex'rs  v.  Murdock,  15 
How.  367. 

9  Ante,  §  126. 

168 


CHAP,  v.]  STATUTES.  [§  143. 

resulting  trust  is  rebutted,  and  the  contrary  presumption 
arises,  that  the  purchase  and  conveyance  were  intended  to  be 
an  advancement  for  the  nominal  purchaser.^  The  transaction 
will  be  regarded  prima  facie  as  a  settlement  upon  the  nominal 
grantee  ;  and  if  the  payer  of  the  money  claims  a  resulting  trust 
he  must  rebut  this  presumption  by  proper  evidence.^  Lord 
Ch.  B.  Eyre  stated  the  doctrine  thus :  "  The  circumstance 
of  one  or  more  of  the  nominees  being  a  child  or  children  of 
the  purchaser  is  held  to  operate  by  rebutting  the  resulting 
trust;  and  it  has  been  determined  in  so  many  cases  that 
the  nominee  being  a  child  shall  have  such  operation,  as  a  cir- 
cumstance of  evidence,  that  it  would  be  disturbing  landmarks 
if  we  suffered  either  of  these  propositions  to  be  called  into 

1  Mui-less  V.  Franklin,  1  Swanst.  17;  Grey  v.  Grey,  2  Swanst.  597; 
Finch,  340;  Dyer  v.  Dyer,  2  Cox,  93;  1  Watk.  Cop.  219;  Redington  v. 
Redington,  2  Ridg.  176;  Elliot  v.  Elliot,  2  Ch.  Ca.  231;  Sidmouth  v. 
Sidmouth,  2  Beav.  454  ;  Thomas  v.  Chicago,  55  111.  403;  Graff  v.  Rohi-er, 
35  Md.  327;  Christy  v.  Courtenay,  13  Beav.  96;  Lamplugh  v.  Lamplugh,  1 
P.  Wras.  Ill;  Goodright  v.  Hodges,  1  Watk  Cop.  228;  Pole  v.  Pole,  1  Ves. 
76;  Woodnaan  v.  Morrell,  2  Freem.  33;  Finch  v.  Finch,  15  Ves.  50 ;  Mumma 
V.  Mumma,  2  Vern.  19;  Skeats  v.  Skeats,  2  N.  C.  C.  9;  Wait  v.  Day,  4 
Denio,  439;  Wilton  v.  Devine,  20  Barb.  9;  Jackson  v.  Matsdorf,  11  Johns. 
91;  Prosers  v.  McTntire,  5  Barb.  424;  Partridge  v.  Havens,  10  Paige, 
678;  Guthrie  v.  Gardner,  19  Wend.  414;  Reid  v.  Fitch,  11  Barb.  399; 
Page  ('.  Page,  8  N.  H.  187;  Astreen  v.  Flanagan,  3  P^dw.  Ch.  279;  Bodine 
V.  Edwards,  Id.  504;  Dennison  v.  Goehring,  7  Barr,  182  n.;  Knouff  v. 
Thompson,  16  Pa.  St.  357;  Fleming  v.  Donahoe,  5  Ohio,  255;  Tremper 
V.  Burton,  18  Ohio,  418;  Stanley  v.  Brannon,  6  Blackf.  193;  Whitten  v. 
Whitten,  3  Cash.  194;  Fatheree  v.  Fletcher,  31  Miss.  265;  Welton  v. 
Devine,  20  Barb.  9;  Butler  v.  Ins.  Co.,  14  Ala.  777;  Douglass  v.  Price,  4 
Rich.  Eq.  322;  Taylor  i'.  James,  4  Des.  6;  Thompson  v.  Thompson,  1 
Yerg.  97;  Dudley  v.  Bosworth,  10  Humph.  12;  Alexander  v.  Warrance, 
2  Bennett,  230;  Cartwright  r.  Wise,  14  111.  417;  Shepherd  v.  White,  10 
Tex.  72;  Baker  v.  Leathers,  3  Ind.  557;  Hill  v.  Pine  River  Bank, 
45  N.  H.  300;  Shaw  v.  Read,  47  Pa.  St.  96;  Dickenson  v.  Davis,  44 
N.  H.  647;  Miller  v.  Blose,  30  Grat.  (Va.)  744;  Kelly  v.  Karsner,  72 
Ala.  106;  Schuster  v.  Schuster,  93  Mo.  438;  Seibold  v.  Chrisman,  75 
Mo.  308;  Read  v.  Huff,  40  N.  J.  Eq.  229;  Newman  v.  Early,  3  Tenn. 
Ch.  716. 

2  Jackson  v.  Matsdorf,  11  Johns.  91;  Shepherd  v.  White,  10  Texas, 
72;  Proseus  i'.  Mclntire,  5  Barb.  425;  Butler  v.  Ins.  Co.,  14  Ala.  777; 
Hill  V.  Pine  River  Bank,  45  N.  H.  300. 

169 


§  144.]  RKSULTING    TRUSTS.  [CHAP.  V, 

question ;  viz.,  that  such  circumstance  shall  rebut  the  result- 
ing trust,  and  that  it  shall  do  so  as  a  circumstance  of  evidence. 
It  would  have  been  a  more  simple  doctrine  if  children  had 
been  considered  as  purchasers  for  valuable  consideration. 
That  way  of  considering  it  would  have  shut  out  all  the  cir- 
cumstances of  evidence  which  have  found  their  way  into  the 
cases,  and  would  have  prevented  some  very  nice  distinctions, 
not  very  easily  understood.  Considering  it  as  a  circumstance 
of  evidence,  there  must,  of  course,  be  evidence  admitted  on 
the  other  side.  Thus  the  question  is  resolved  into  one  of  intent, 
which  was  getting  into  a  very  wide  sea  without  very  certain 
guides."^  And  Lord  Nottingham  pointed  out  that  the  law 
of  resulting  trusts,  in  this  respect,  was  analogous  to  uses 
before  the  statute,  "  for  the  feoffment  of  a  stranger,  before  the 
statute,  without  consideration,  raised  a  use  in  the  feoffor ; 
but  a  feoffment  by  a  father  to  a  son,  without  other  considera- 
tion, raised  no  use  by  implication  in  the  father,  for  the  con- 
sideration of  blood  settled  the  use  in  the  son,  and  made  it 
an  advancement."  ^  Where  the  husband  purchases  land  for 
his  wife  with  his  own  funds,  taking  the  obligation  of  the 
vendor  to  execute  a  deed  to  the  wife,  the  latter,  or  after 
her  death  her  children,  can  enforce  a  conveyance  of  the 
legal  title,  although  the  said  obligation  had  been  pledged 
to  the  vendor  by  the  husband  as  a  security  for  a  loan  to 
himself.^ 

§  144.  This  rule  embraces  all  persons  for  whom  the  pur- 
chaser is  under  any  obligation,  legal  or  moral,  to  provide.  It 
embraces  daughters  as  well  as  sons,*  although  a  distinction 

1  Dyer  v.  Dyer,  2  Cox,  94.  Where  land  is  purchased  with  money 
of  the  wife  and  the  deed  taken  in  name  of  tlie  husband,  it  is  a  ques- 
tion of  fact  and  intention  whether  the  husband  reduced  the  money  to 
possession  before  paying  it  over  for  the  deed.  Moulton  v.  Haley,  57 
N.  H.  184. 

2  Grey  v.  Grey,  2  Swanst.  598. 

3  Morris  v.  Hanson,  78  Ala.  230. 

*  Lady  Gorge's  Case,  Cro.  Car.  550;  2  Swanst.  600;  Clarke  i'.  Dau- 
vers,  1  Ch.  Ca.  310;  Woodman  v.  Morrell,  2  Freem.  33;  Jennings  v. 
Selleck,   1  Vern.  467;   Bedwell  v.  Froome,  2  Cox,  97;   Back  r.  Andrew, 

170 


CHAP,  v.]       PURCHASES    IN    NAME    OF    WIFE    OR    CHILD.  [§  144. 

was  once  attempted,  on  the  ground  that  it  is  not  so  commou 
to  settle  lands  upon  daughters  as  upou  sons.^  It  embraces 
estates  bought  in  the  name  of  a  wife,^  and  in  the  joint  names 
of  the  wife  and  the  purchaser ;  ^  also,  in  the  names  of  the  wife 
and  children.*  So,  in  the  names  of  a  son  and  a  stranger,  in 
which  case  the  moiety  to  the  son  will  be  an  advancement,^ 
but  the  moiety  in  the  name  of  the  stranger  will  be  presumed 
to  be  in  trust  for  the  purchaser.^  And  if  a  grandparent  pur- 
chase in  the  name  of  a  grandchild,  whether  the  father  is  or  is 
not  dead,  it  will  be  presumed  to  be  an  advancement,  and  not 
a  trust ;  "^  and  so  a  purchase  by  a  person  who  has  placed  him- 
self 171  loco  parentis  to  the  nominal  grantee  will  be  presumed 
to  be  a  settlement,  and  not  a  trust,  for  the  purchaser.^     And 

2  Vern.  120;  Baker  v.  Leathers,  3  Ind.  558;  Murphy  v.  Nathans,  40  Pa. 
St.  .508.  Astreen  v.  Flanagan,  3  Edw.  Ch.  279,  was  the  case  of  au 
adopted  daughter. 

1  Gilb.  Lex.  Prset.  272. 

2  Ghxister  v.  Hewer,  8  Ves.  199;  Duramer  v.  Pitcher,  2  M.  &  K.  262; 
Kingdom  v.  Bridges,  2  Vern.  67;  Christ's  Hospital  v.  Budgin,  2  Vern. 
683;  Back  v.  Andrew,  Id.  120;  Benger  v.  Drew,  1  P.  Wms.  780;  Wallace 
V.  Bowens,  28  Vt.  138 ;  Guthrie  v.  Gardner,  19  Wend.  414 ;  Welton  v. 
Devine,  20  Barb.  9;  Garfield  v.  Platmaker,  15  N.  Y.  475;  Jencks  v.  Alex- 
ander, 11  Paige,619;  Astreen  v.  Flanagan,  3  Edw.  Ch.  279;  Kline's  App., 
39  Pa.  St.  463;  Alexander  v.  Warrance,  2  Bennett,  230;  Drew  v.  Martin, 
32  L.  J.  Ch.  367;  Graff  v.  Kohrer,  35  Md.  327;  Johnson  v.  Johnson,  16 
Minn.  512;  Thomas  v.  Chicago,  55  111.  403.  But  if  there  is  no  legal 
marriage,  the  conveyance  will  be  presumed  to  be  a  trust,  and  not  an 
advancement.     Soar  v.  Foster,  4  K.  &  J.  152. 

3  Ibid. 

*  Dummer  v.  Pitcher,  2  M.  &  K.  262;  5  Sim.  35;  Kingdom  v.  Bridges, 
2  Vern.  67;  Back  v.  Andrew,  Id.  120;  Stevens  v.  Stevens,  70  Me.  92. 

^  Lamplugh  v.  Lamplugh,  1  P.  Wms.  Ill;  Kingdom  v.  Bridges,  2 
Vern.  67;  RumboU  v.  RumboU,  1  Eden,  17. 

«  Ibid. 

■^  Ebrand  v.  Dancer,  2  Ch.  Ca.  26;  Lloyd  v.  Read,  1  P.  Wms.  607; 
Currant  v.  Jago,  1  Coll.  205,  n.  (c)  ;  Tucker  v.  Burrow,  2  Hem.  &  M.  525; 
Kilpin  V.  Kilpin,  1  M.  &  K.  .520. 

®  Ibid.  But  it  is  said  that  such  purchase  will  not  be  presumed  to  be 
an  advancement  if  the  conveyance  is  taken  to  a  remote  relative,  or  to  a 
stranger,  although  the  real  purchaser  may  have  placed  himself  in  loco 
parentis.  Tucker  v.  Burrow,  2  Hem.  &  M.  515;  Powys  v.  Mansfield,  3 
My.  &  Cr.  359;  Miller  v.  Blose,  30  Grat.  (Va.)  744. 

171 


I  144.]  RESULTING   TRUSTS.  [CHAP.  V. 

if  the  nominal  grantee  is  an  illegitimate  child  of  the  pm-chaser, 
the  same  presumption  will  arise ;  ^  or  if  the  nominal  grantee 
be  an  idiot,^  or  a  son-in-law.^  But  if  the  nominal  grantee  be 
a  brother  of  the  purchaser,  the  law  will  presume  a  trust  and 
not  an  advancement,  on  the  ground  that  there  is  no  such 
obligation  on  one  brother  to  support  or  provide  for  another, 
that  the  purchase  can  be  presumed  to  be  made  for  such  a  pur- 
pose;^ so  if  one  sister  pay  the  money,  and  take  the  convey- 
ance in  the  name  of  another  sister.^  And  where  the  nominal 
grantee  stands  in  the  relation  of  mother  or  nephew  to  the  real 
purchaser,  no  presumption  of  an  advancement  or  settlement 
will  arise,  but  it  will  be  presumed  to  be  a  trust,  unless  the 
purchaser  stands  in  loco  parentis  to  the -nominal  grantee.® 
And  if  the  son  stands  in  the  relation  of  solicitor  to  his  mother, 
a  purchase  made  by  her,  in  his  name,  will  be  presumed  to  be 
a  trust,  as  the  relation  of  solicitor  and  client  rebuts  the  pre- 
sumption of  an  advancement,''  and  so,  it  is  said,  the  rule  does 
not  apply  to  any  purchase  made  by  a  mother  in  the  name  of 
a  child.^  A  purchase  by  a  wife  in  the  name  of  her  husband 
may  be  shown  to  be  a  trust.^  The  rule  applies  to  personal  as 
well  as  real  property.^^ 

1  Beckford  v.  Beckford,  Lofft.  490;  Kilpin  v.  Kilpin,  1  M.  &  K.  556, 
Anon.,  1  Wal.  Jr,  107;  Kmainel  i'.  Mc Right,  2  Barr,  38;  Soar  v-  Foster, 
4  K.  &  J.  160.  But  it  is  said  that  this  rule  will  not  apply  to  the  illegiti- 
mate child  of  a  legitimate  child.     Tucker  v.  Burrow,  2  Hem.  &  M.  525. 

2  Cartwright  r.  AVise,  14  Til.  417. 

3  Baker  v.  Leathers,  3  Porter,  558. 

*  INIaddison  ».  Andrew,  1  Ves.  58;  Edwards  v.  Edwards,  39  Pa.  St. 
360:  Foster  v.  Foster,  34  L.  J.  Ch.  428. 

5  Keaton  v.  Cobb,  1  Dev.  Ch.  439;  Field  v.  Lonsdale,  14  Jur.  995,  13 
Beav.  78. 

6  Currant  r.  Jago,  1  Coll.  C.  C.  203;  Lamplugh  v.  Lamplugh,  1  P. 
Wms.  Ill;  Taylor  v.  Alston,  2  Cox,  97;  Edwards  v.  Field,  3  Mad.  237; 
Jackson  v.  Feller,  2  Wend.  4G5. 

">  Garrett  v.  Wilkinson,  2  De  G.  &  Sm.  244. 

8  In  re  De  Visme,  2  De  G.,  J.  &  Sm.  17. 

9  McGovern  &  Knox,  21  Ohio  St.  552. 

K»  Devoy  v.  Devoy,  3  Sm.  &  Gif.  403;  Dummer  v.  Pitcher,  2  :M.  &  K. 
262;  Bone  v.  Pollard,  24  Beav.  283;  Sidmouth  v.  Sidmouth,  2  Beav.  447; 
Fox  V.  Fox,  15  Ir.  Ch.  89. 

172 


CHAP,  v.]      PURCHASES    IN    NAME    OF    WIPE    OR    CHILD.  [§  145. 

§  145.  The  general  principle  is,  that  a  purchase  by  the 
parent,  in  the  name  of  a  child,  is  presumed  to  be  an  advance- 
ment, and  not  a  trust.  This  presumption  is  one  of  fact,  and 
may  be  rebutted  by  evidence  or  circumstances ;  and  some 
courts  have  been  astute  in  finding  circumstances  and  subtile 
distinctions  to  rebut  this  presumption.  Thus,  if  the  child 
was  an  infant,  it  was  thought  that  a  parent  would  not  confer 
upon  it  an  absolute  property,  which  it  was  incapable  of  man- 
aging,!  and  so,  if  the  interest  was  reversionary,  and  not  capa- 
ble of  present  enjoyment,  it  was  said  that  the  father  could 
not  have  intended  it  as  a  provision  and  settlement,  or  ad- 
vancement.2  Again,  if  a  father  took  the  conveyance  in  his 
own  name  jointly  with  his  son,  it  was  supposed  that  the  pre- 
sumption of  an  advancement  was  rebutted,  on  the  ground 
that  the  father  had  some  interest  in  one  half,  and  might  have 
the  whole  by  survivorship,  while  the  son  could  not  sever  the 
joint  tenancy  till  he  arrived  at  age.^  And  if  a  father  took  a 
grant  to  himself  and  sons  upon  successive  lives,  it  was  thought 
that,  as  the  father  must  use  some  names  beside  his  own,  those 
of  his  sons,  being  used  from  prudential  and  family  reasons, 
rebutted  the  presumption  of  an  advancement  and  raised  the 
presumption  of  a  trust ;  *  and  so  the  circumstance  that  a  child 
was  already  provided  for  was  held  to  rebut  the  presumption 
of  a  further  advancement.^  Again,  if  a  father  purchased  in 
the  name  of  an  adult  son,  and  kept  the  actual  possession  of 
the  estate,  and  received  the  rents  and  profits,  the  presumption 
of  an  advance  was  supposed  to  be  rebutted,  and  the  presump- 
tion of  a  trust  created.^ 

1  Billion  I'.  Stone,  2  Freem.  169  ;  Nels.  68  ;  2  Freem.  128,  c. 
151. 

2  RumboU  V.  Rumboll,  2  Eden,  17;  Finch  v.  Finch,  15  Ves.  43;  Mur- 
less  V.  Franklin,  1  Swanst.  13. 

8  Stileman  v.  Ashdown,  2  Atk.  480;  Pole  v.  Pole,  1  Ves.  76. 

*  Dyer  v.  Dyer,  2  Cox,  95;  1  VVatk.  Cop.  221 ;  Dickinson  v.  Shaw,  2 
Cox,  95. 

6  Elliot  V.  Elliot,  2  Ch.  Ca.  231;  Pole  v.  Pole,  1  Ves.  76;  Grey  v.  Grey, 
2  Swanst.  600;  Finch,  341;  Lloyd  v.  Read,  1  P.  Wms.  608;  Redington  v. 
Redington,  3  Ridg.  190. 

fi  Gilb.  Lex  Pr^t.  271. 

173 


§  146.]  RESULTING   TRUSTS.  [CHAP.  V. 

§  146.  But  these  objections  have  all  been  overruled,  and 
from  the  manner  these  distinctions  are  disposed  of,  a  general 
principle  applicable  to  every  case  may  be  stated,  "  that  reasons 
which  partake  of  too  great  a  degree  of  refinement  should  not 
prevail  against  a  rule  of  property  which  is  so  well  established 
as  to  become  a  landmark,  and  which,  whether  right  or  wrong, 
should  be  carried  throughout,"  ^  and  Lord  Eldon  added,  that 
this  principle  of  law,  that  a  purchase  is  presumed  prima 
facie  to  be  an  advancement,  is  not  to  be  frittered  away  by 
mere  refinements.^  Therefore  it  is  now  established  that  a 
purchase  in  the  name  of  an  infant  child  is  prima  facie  an 
advancement,^  and  the  purchase  of  a  reversionary  interest  in 
the  name  of  a  child  falls  within  the  same  rule  ;*  so  a  purchase 
by  a  father,  in  the  joint  names  of  himself  and  son,^  or  in  the 
joint  names  of  a  son  and  a  stranger,^  and  so  if  a  father  take 
an  estate  for  successive  lives,  as  his  own  and  his  sons'.'  If  a 
child  in  whose  name  the  purchase  is  made  is  already  provided 
for,  it  will  be  a  circumstance  to  be  considered  Avith  other 
evidence ;  but  it  will  not  of  itself  rebut  the  presumption  of  an 
advancement.  Lord  Loughborough  said,  "  that  a  purchase 
under  such  circumstances  by  a  father  in  the  name  of  a  son 
was  not,  but  might  be,  a  trust  for  the  father."  ^  If  a  father  pur- 
chase in  the  name  of  a  son.  whether  an  infant  or  an  adult,  and 
keep  the  actual  possession  of  the  estate,  and  receive  the  profits, 

1  By  Ch.  B.  Eyre,  Dyer  v.  Dyer,  2  Cox,  98. 

2  Finch  V.  Finch,  15  Ves.  50. 

8  Ibid.;  Mumina  v.  Mumma,  2  Vern.  19;  Lamplugh  v.  Laniplugh,  1 
P.  Wms.  Ill;  Lady  Gorge's  Case,  2  Swanst.  600;  Collinson  v.  Colliiison 
3  De  G.,  M.  &  G.  403;  Skeats  i^.  Skeats,  2  Y.  &  C.  Ch.  Ca.  9;  Christy  ;; 
Courtenay,  13  Beav.  19. 

*  Rumboll  V.  RumboU,  2  Eden,  17;  Murless  v.  Franklin,  1  Swanst.  13 
Finch  V.  Finch,  15  Ves.  43. 

5  Dummer  v.  Pitcher,  2  M.  &  K.  272;   Grey  v.  Grey,  2  Swanst.  599 
Back  V.  Andrew,  2  Vern.  120;  Scroope  v.  Scroope,  1  Ch.  Ca.  27;  Thomp- 
son V.  Thompson,  1  Yerg.  97. 

^  Hayes  v.  Kingdom,  1  Vern.  34;  Kingdom  v.  Bridges,  2  Vern.  67; 
Lamplugh  v.  Lamplugh,  1  P.  Wms.  111. 

'  Dyer  v.  Dyer,  2  Cox,  95. 

8  Ibid.  93;  Redington  v.  Redington,  3  Ridg.  190;  Sidmouth  v.  Sid- 
mouth,  2  Beav.  456;  Kilpin  v.  Kilpin,  1  M.  &  K.  542. 

174 


CHAP,  v.]  EVIDENCE.  [§  147. 

it  will  be  presumed  that  the  purchase  was  an  advancement ;  ^ 
for  if  the  son  was  an  infant,  the  father  would  be  its  natural 
guardian,  or  quasi  guardian,  and  protector,  and  thus  receive 
the  rents  of  the  estate.^  And  if  the  son  was  an  adult,  the 
natural  reverence  and  submission  due  from  children  to  their 
parents  would  account  for  the  circumstances.^  But  any  con- 
temporaneous acts  wholly  inconsistent  with  the  intention  of 
an  advancement  to  the  child  will  make  him  a  trustee  for  the 
father.  Thus,  if  there  is  any  circumstance  accompanying 
the  purchase  which  explains  wiiy  it  was  taken  in  the  wife's 
or  child's  name,  and  shows  that  it  was  not  intended  to  be  an 
advancement,  but  was  intended  to  be  a  trust  for  the  husband 
or  father,  the  presumption  of  an  advancement  will  be  rebutted, 
and  the  inference  of  a  trust  will  be  established.* 

§  147.  Whether  a  purchase  in  the  name  of  a  wife  or  child 
is  an  advancement  or  not,  is  a  question  of  pure  intention, 
though  presumed  in  the  first  instance  to  be  a  provision  and 
settlement ;  therefore,  any  antecedent  or  contemporaneous 
acts  or  facts  may  be  received,  either  to  rebut  or  support  the 
presumption,^  and  any  acts  or  facts  so  immediately  after  the 

^  Grey  v.  Grey,  2  Swanst.  GOO;  Redington  v.  Redington,  3  Ridg.  190; 
Lamplugh  v.  Lamplugh,  1  P.  Wms.  111. 

■■2  Murama  v.  Mumma,  2  Vern.  19;  Fox  v.  Fox,  15  Tr.  Ch.  89;  Taylor 
V.  Taylor,  1  Atk.  386;  Lamplugh  v.  Lamplngh,  1  P.  Wms.  Ill;  Lloyd  v. 
Read,  Id.  608;  Lady  Gorge's  Case,  Cro.  Car.  5.50;  2  Swanst.  600;  Stileman 
V.  Ashdown,  2  Atk.  480;  Christy  v.  Courtenay, .  13  Beav.  96;  Paschall  v. 
Hinderer,  28  Ohio  St.  508. 

*  Grey  v.  Grey,  2  Swanst.  600;  Dyer  v.  Dyer,  2  Cox,  95;  Woodman  w. 
Morrell,  2  Freem.  32,  note  by  Hovenden;  Shales  v.  Shales,  Id.  252; 
Scawen  v.  Scawen,  1  Y.  &  C.  Ch.  65;  Murless  v.  Franklin,  1  Swanst.  17; 
Redington  v.  Redington,  3  Ridg.  190;  Sidmouth  v.  Sidmouth,  2  Beav. 
447;  Elliot  v.  Elliot,  2  Ch.  Ca.  231 ;  Williams  v.  Williams,  32  Beav.  370; 
Lloyd  V.  Read,  1  P.  Wms.  607. 

4  Prankerd  v.  Prankerd,  1  S.  &  S.  1;  Baylis  v.  Newton,  1  Vern.  28  ; 
Birch  V.  Blagrave,  Amb.  264;  Farr  v.  Davis,  8  East,  354;  Perkins  v. 
Nichols,  11  Allen,  .542;  Balford  v.  Crane,  1  Greene,  Ch.  265;  Skillman  v. 
Skillman,  2  McCarter,  478;  Gib.son  v.  Foote,  40  Miss.  788;  Cook  v.  Bre- 
mond,  27  Tex.  4.57;  Sunderland  ;;.  Sunderland,  19  Iowa,  325;  Clark  v. 
Clark,  43  Vt.  685. 

^  Christy  n.  Coiirteiiay,  13  Beav.   96;  Baylis  v.   Newton,  2  Vern.  28; 

175 


§  147.]  RESULTING    TRUSTS.  [CHAP,  V. 

purchase  as  to  be  fairly  considered  a  part  of  the  transaction 
may  be  received  for  the  same  purpose.^  And  so  the  declara- 
tions of  the  real  purchaser,  either  before  or  at  the  time  of  the 
purchase,  may  be  received  to  show  whether  he  intended  it  as 
an  advancement  or  a  trust.^  Such  declarations  are  received, 
not  as  declarations  of  a  trust  by  parol  or  otherwise,  but  as 
evidence  to  show  what  the  intention  was  at  the  time.  They 
are  parts  of  the  transaction,  or  words  accompanying  an  act.^ 
The  real  purchaser,  if  otherwise  competent,  may  be  a  witness 
to  state  what  his  objects,  purposes,  and  intentions  were  in 
making  the  purchase  and  in  taking  the  title  in  the  name  of 
his  wife  or  child.*  Of  course,  declarations  made  by  the  hus- 
band or  father  after  the  purchase  are  incompetent  to  control 
the  effect  of  the  prior  transaction.^  But  such  declarations 
may  be  used  by  the  wife  or  child  against   the  purchaser  to 

Shales  v.  Shales,  2  Freem.  252;  Tucker  v.  Burrow,  2  Hem.  &  M.  524; 
CoUinson  v.  Collinsoii,  3  De  G.,  M.  &  G.  409;  Murless  v.  Frauklin,  1 
Swanst.  19;  Lloyd  v.  Read,  1  P.  Wms.  607;  Taylor  v.  Alston,  cited  2  Cox, 
96;  Grey  v.  Grey,  2  Swanst.  600;  Williams  v.  Williams,  32  Beav.  370; 
Redington  v.  Redington,  3  Ridg.  177;  Rawleigh's  Case,  cited  Hard.  497; 
Prankerd  r.  Prankerd,  1  S.  &  S.  1 ;  Swift  v.  Davis,  8  East,  354,  n.  (a); 
Hall  V.  Hall,  1  Connor  &  Law.  120:  Taylor  v.  Taylor,  4  Gilm.  303;  Slack 
V.  Slack,  26  Miss.  290;  Johnson  v.  Matsdorf,  11  Johns.  91;  Butler  v.  M. 
Ins.  Co,  14  Ala.  777;  Dudley  r.  Bosworth,  10  Humph.  12;  Hayes  v. 
Kindersley,  2  Sm.  &  Gif.  lf)4;  Peer  v.  Peer,  3  Stockt.  432;  Persons  v.  Per- 
sons, 25  N.  J.  Eq.  2.50;  Milner  v.  Freeman,  40  Ark.  62. 

1  Jeans  v.  Cooke,  24  Beav.  521;  Redington  v.  Redington,  3  Ridg.  196; 
Prankerd  I'.  Prankerd,  1  S.  &  S.  1;  INIurless  v.  Franklin,  1  Swanst.  17; 
Swift  V.  Davis,  8  East,  354,  n.  (a);  Robinson  v.  Robinson,  45  Ark.  481. 

2  Devojv.  Devoy,  3  Sm.  &  Gif.  403;  Grey  *;.  Grey,  2  Swanst.  594: 
Kilpin  V.  Kilpin,  1  M.  &  K,  520;  Sidmouth  v.  Sidmouth,  2  Beav.  455; 
Scawen  v.  Scawen,  1  N.  C.  C.  65. 

2  Ibid.;  Baker  v.  Leathers,  3  Ind.  558. 

4  Devoy  v.  Devoy,  3  Sm.  &  Gif.  403;  Stone  v.  Stone,  3  Jur.  (n.  s.) 
708. 

5  Tremper  i-.  Burton,  18  Ohio,  418;  Christy  v.  Courtenay,  13  Beav.  96; 
Williams  v.  Williams,  32  Beav.  32;  Sidmouth  v.  Sidmouth,  2  Beav.  456; 
Elliot  V.  Elliot,  2  Ch.  Ca.  231 ;  Woodman  v.  Morrell,  2  Freem.  33;  Finch 
r.  Finch,  15  Ves.  51;  Birch  v.  Blagrave,  Amb.  266;  Skeats  v.  Skeats,  2 
Y.  &  C.  Ch.  9;  Gilb.  Lex  Prat.  271;  Murless  v.  Franklin,  1  Swanst.  13; 
Crabb  V.  Crabb,  1  M.  &  K.  519;  Prankerd  v.  Prankerd,  1  S.  &  S.  1 ;  Hub- 
ble V.  Osborne,  31  Ind.  249. 

176 


CHAP,  v.]  EVIDENCE.  [§  149. 

show  that  it  was  a  settlement  and  not  a  trust. ^  And  the 
after  declarations  of  the  nominal  grantee  may  be  used  against 
him,  but  not  in  his  favor.^  But  the  declarations  naust  be 
direct  and  certain,  and  where  possible  should  be  corroborated 
by  other  facts  and  circumstances ;  for  courts  will  not  act 
upon  mere  declarations,  if  they  are  conflicting,  vague,  or  in- 
consistent with  themselves." 

§  148.  If  a  father  pays  the  purchase-money,  and  the  wife 
or  child,  by  fraud,  or  any  wrongful  act,  and  against  the  inten- 
tion of  the  real  purchaser,  obtains  the  conveyance  in  her  or 
its  name,  the  presumption  of  an  advancement  would  be  re- 
butted, and  the  presumption  of  a  trust  would  arise  for  the 
father.*  So  if  a  son  pay  the  purchase-money  and  the  deed 
is  made  to  his  father  by  mistake,  a  trust  results  to  the  son.^ 

§  149.  If  a  purchaser  and  payer  of  the  money  take  the  con- 
veyance in  the  name  of  a  wife  or  child,  for  the  purpose  of 
delaying,  hindering,  or  defrauding  his  creditors,  the  convey- 
ance is  void,  or  a  trust  results  which  creditors  can  enforce  to 
the  extent  of  their  debts.^     It  makes  no  difference  by  the 

1  Redington  v.  Redington,  3  Ridg.  lOG;  Sidraouth  v.  Sidmouth,  2 
Beav.  455. 

2  Scawen  v.  Scawen,  1  N".  C.  C.  65;  Jeans  v.  Cook,  24  Beav.  521 ;  Sid- 
mouth V.  Sidraouth,  2  Beav.  455;  Pole  v.  Pole,  1  Ves.  76;  Murless  v. 
Franklin,  1  Swanst.  20;  Willard  v.  Willard,  56  Pa.  St.  119. 

8  Grey  v.  Grey,  2  Swanst.  597  ;  Scawen  o.  Scawen,  1  N.  C.  C.  65;  Cart- 
wright  V.  Wise,  14  111.  417;  Cairns  v.  Colburn,  104  Mass.  247. 

*  Peer  v.  Peer,  3  Stockt.  432;  Hall  v.  Doran,  13  Iowa,  368;  Perkins  v. 
Nichols,  11  Allen,  542;  Persons  v.  Persons,  25  N.  J.  Eq.  250. 

5  Fairhurst  v.  Lewis,  23  Ark.  435. 

'  Christ's  Hospital  v.  Budgin,  2  Vern.  681;  Lush  v.  Wilkinson,  5  Ves. 
384;  Townshend  v.  Westacott,  2  Beav.  340;  Stileman  v.  Ashdown,  2  Atk. 
477;  Guthrie  v.  Gardner,  10  Wend.  414;  Jencks  v.  Alexander,  11  Paige, 
619;  Watson  v.  Le  Row,  6  Barb.  487;  Newell  v.  Morgan,  2  Harr.  225; 
Bell  V.  Hallenback,  Wright,  751  ;  Edgington  v.  Williams,  Id.  439  ;  Parrish 
V.  Rhodes,  Id.  339  ;  Creed  v.  Lancaster  Bank,  1  Ohio  St.  1;  Demaree  v. 
Driskill,  3  Blackf.  115;  Doyle  v.  Sleeper,  1  Dana,  531;  Rucker  v.  Abel), 
8  B.  Mon.  560  ;  Crozier  v.  Young,  3  Mon.  158;  Gowing  v.  Rich,  1  Ired. 
553;  Croft  v.  Arthur,  3  Des.  223;  Elliott  r.Hart,  10  Ala.  348;  Abney  v. 

VOL.  I.  — 12  477 


§  150.]  RESULTING    TRUSTS.  [CHAP.  V. 

better  opinion  that  the  intent  was  not  fraudulent.  A  man  must 
be  just  before  he  is  generous  ;  and  if  the  property  given  to  the 
wife  was  bought  with  funds  that  ought  to  have  gone  to  pay 
creditors,  the  property  is  liable  to  them.^  A  parallel  decision 
was  reached  where  a  wife  bought  land  with  her  own  money, 
had  it  deeded  to  her  husband,  and  the  latter  contracted  debts 
on  the  faith  of  being  the  owner  of  the  land."-^  If  the  parent  or 
husband  was  not  indebted  at  the  time,  subsequent  creditors 
could  not  defeat  the  title  nor  enforce  the  trust,-^  unless  the 
settlement  or  conveyance  was  made  for  the  purpose  of-  after- 
wards running  in  debt  and  defrauding  creditors.  In  some 
States,  as  in  Pennsylvania  and  Massachusetts,  an  execution 
against  the  debtor  can  be  levied  directly  upon  the  land  in  the 
hands  of  the  trustee ;  in  other  States  the  lands  can  only  be 
reached  in  equity.  In  Minnesota,  a  purchase  by  a  husband 
and  a  deed  to  the  wife  creates  no  trust  as  to  him,  but  the 
wife  holds  in  trust  for  creditors  unless  fraudulent  intent  is 
disproved.^ 

§  150.  A  very  common  case  of  a  resulting  trust  is  where 
the  owner  of  both  the  legal  and  equitable  estate  conveys  the 
legal  title  only,  without  conveying  the  equitable  interest.^ 
The  general  rule  in  such  case  is,  that  wherever  it  appears, 
upon  a  conveyance,  devise,  or  bequest,  that  it  was  intended 
that  the  grantee,  devisee,  or  legatee  should  take  the  legal 
estate  only,  the  equitable  interest,  or  so  much  of  it  as  is  left 
undisposed  of,  will  result,  if  arising  out  of  the  settlor's 
realty,  to  himself  or  his  heirs ;  if  out  of  his  personal  estate, 

Kingsland,  Id.  355;  Cutter  v.  Griswold,  Walk.  Ch.  437;  Kimmel  v. 
McRight,  2  Barr,  38  ;  McCartney  v.  Bostwick,  32  N.  Y.  53;  Bartlett  v. 
Bartlett,  13  Neb.  460,  quoting  the  text. 

1  Bridgers  v.  Howell,  27  S.  C.  431. 

2  Roy  V.  McPherson,  11  Neb.  197. 

3  Creed  v.  Lancaster  Bank,  1  Ohio  St.  1;  Knouff  v.  Thompson,  16  Pa. 
St.  357;  Dillard  v.  Dillard,  3  Humph.  41:  Cutler  v.  Tuttle,  19  N.  J.  Ch. 
556. 

*  Leonard  v.  Green,  .30  Minn.  496. 

5  Morice  r.  Bishop  of  Durham,  10  Ves.  5-37;  Paice  v.  Canterbury,  14 
Ves.  370. 

178 


CHAP,  v.]  CONVEYANCE    OF    LEGAL    TITLE,    ETC.  [§  151. 

to  himself,  his  executors,  or  administrators.^  Whether  the 
conve3'ance  was  intended  to  convey  the  beneficial  as  well  as 
the  legal  estate  is  sometimes  a  matter  of  presumption  by  the 
court  from  all  the  circumstances  of  the  case,  and  sometimes 
it  is  expressed  upon  the  instrument  itself  in  such  manner 
that  no  doubts  can  arise.  When  it  is  matter  of  presumption, 
parol  evidence  may  be  received  to  rebut  or  sustain  the  prc- 
sumption.2  But  where  the  trust  results  by  force  of  the  writ- 
ten instrument,  it  cannot  be  controlled,  rebutted,  or  defeated 
by  parol  evidence  of  any  kind.-^ 

§  151.  No  general  rule  can  be  stated,  that  will  determine 
when  a  conveyance  will  carry  with  it  a  beneficial  interest, 
and  when  it  will  be  construed  to  create  a  trust ;  but  the 
intention  is  to  be  gathered  in  each  case  from  the  general 
purpose  and  scope  of  the  instrument.*  A  conveyance  to  a 
wife  or  child  will  be  presumed  to  carry  a  beneficial  interest,^ 

1  Lewin  on  Trusts,  115  (5th  ed.  Lond.);  Levet  r.  Needham,  2  Vern. 
138;  Wych  v.  Packington,  3  Bro.  Ch.  44;  Sewell  v.  Denny,  10  Beav.  315; 
Halford  v.  Stains,  16  Sim.  488;  Barrett  v.  Buck,  12  Jur.  771;  Cooke  v. 
Dealy,  22  Beav.  196;  Fletcher  ;;.  Ashburner,  1  Bro.  Ch.  501 ;  Re  Cross's 
Estate,  1  Sim.  (n.  s.)  260;  Ilogan  v.  Staghorn,  65  N.  C.  279. 

2  Cook  V.  Hutchinson,  1  Keen,  50;  Docksey  v.  Docksey,  2  Eq.  Ca.  Ab. 
506;  3  Bro.  P.  C.  39;  North  v.  Crompton,  1  Ch.  Ca.  196;  2  Vern.  2-53; 
Mallabar  v.  Mallabar,  Cas.  t.  Talb.  78;  Petit  v.  Smith,  1  P.  Wms.  7; 
Nourse  v.  Finch,  1  Ves.  Jr.  344;  Walton  r.  Walton,  14  Ves.  318;  Lang- 
ham  V.  Sanford,  17  Ves.  435;  Gladding  v.  Yaj^p,  5  Mod.  56;  Lake  v. 
Lake,  1  Wils.  313;  Arab.  126;  Trimmer  v.  Bayne,  7  Ves.  520;  Williams 
V.  Jones,  10  Ves.  77;  Barnes  v.  Taylor,  27  N.  J.  Eq.  265. 

3  Langham  v.  Sanford,  17  Ves.  435,  442;  19  Ves.  643;  Rachfield  v. 
Careless,  2  P.  Wms.  158;  Gladding  v.  Yapp,  5  Mod.  59;  White  v.  Evans, 
4  Ves.  21;  Walton  v.  Walton,  14  Ves.  322;  Petit  v.  Smith,  1  P.  Wms.  7; 
Nourse  v.  Finch,  1  Ves.  Jr.  344;  Ralston  v.  Telfair,  2  Dev.  Eq.  255; 
Hughes  i\  Evans,  13  Sim.  496;  White  v.  Williams,  3  V.  &  B.  72;  Love  v. 
Gaze,  8  Beav.  472. 

*  Hill  y.  Bishop  of  London,  1  Atk.  620;  Walton  v.  Walton,  14  Ves. 
322;  Starkey  V.  Brooks,  1  P.  Wms.  391;  King?;.  Dennison,  1  Ves.  &  B. 
279;  Ellis  v.  Selby,  1  M.  &  K.  298. 

5  Christ's  Hospital  v.  Budgin,  2  Vern.  683;  Jennings  v.  Selleck,  1 
Vern.  467  ;  Grey  v.  Grey,  2  Swanst.  598;  Elliot  v.  Elliot,  2  Ch.  Ca.  232; 
Hayes  v.  Kingdom,  1  Vern.  33;  Baylis  v.  Newton,  2  Vern.  28  ;  Cook  v. 
Hutchinson,  1  Keen,  42  ;  Cripps  v.  Jee,  4  Bro.  Ch.  472  ;  Rogers  v.  Rogers, 

179 


§  151.]  RESULTING   TRUSTS.  [CHAP.  V. 

but  such  consideration  is  only  a  circumstance  of  evidence.^ 
It  has  been  said,  that  if  a  man  transfer  property  to  another, 
it  must  be  presumed  that  it  proceeded  from  an  intention  to 
benefit  the  other  by  making  the  gift  and  conferring  the 
beneficial  interest  ;2  but  if  such  intention  cannot  be  inferred 
consistently  with  all  the  circumstances  attending  the  trans- 
action, a  trust  will  result.^  The  heir  is  not  to  be  excluded 
from  a  resulting  trust  upon  bare  conjecture ;  *  there  must  be 
positive  evidence  of  a  benefit  intended  to  the  devisee,  and 
not  merely  negative  evidence  that  none  was  intended  for  the 
heir ;  for  the  beneficial  interest  results  to  the  heir,  not  from 
the  intention  of  the  ancestor,  but  because  he  has  expressed 
no  intention.^  Thus,  a  trust  may  result  upon  a  legacy  given 
to  the  heir;^  but  the  circumstance  of  being  heir,  with  other 
circumstances,  will  be  strong  evidence  that  no  trust  was  in- 
tended.'^ But  in  no  case  will  the  court  permit  the  grantee  to 
retain  the  beneficial  interest,  if  there  was  any  mistake  on  the 
part  of  the  grantor,^  or  any  fraud  on  the  part  of  the  grantee.^ 

3  P.  Wms.  193  ;  Lloyd  v.  Spillett,  2  Atk.  566;  Robinson  v.  Taylor,  2  Bio. 
Ch.  594  :  Smith  v.  King,  16  East,  283;  Coningham  v.  :\Iellish,  Pr.  Ch.  31. 
^  Huggins  V.  Yates,  9  Mod.  122;  Wych  v.  Fackiugtou,  2  Eq.  Ca.  Ab. 
507;  King  v.  Dennison,  1  Ves.  &  B.  474. 

2  George  v   Howard.  7  Price,  651. 

3  Custauce  v.  Cunningham,  13  Beav.  363. 

4  Halliday  v.  Hudson,  3  Ves.  211  ;  Kellett  v.  Kellett,  3  Dow,  248; 
Amphlett  r.Varke,  2  R.  &  M.  227;  Phillips  v.  Phillips,  1  M.  &  K.  661; 
Salter  v.  Cavanagh,  1  Dru.  &  Walsh,  668. 

5  Hopkins  I).  Hopkins,  Cas.  t.  Talb.  44;  Tregonwell  i-.  Sydenham,  3 
Dow,  211;  Lloyd  v.  Spillett,  2  Atk.  151;  Habergham  v.  Vincent,  2  Ves. 
Jr.  225. 

6  Randall  v.  Bookey,  2  Vern.  425;  Pr.  Ch.  162;  Starkey  v.  Brooks.  1 
P.  Wms.  390,  overruling  Xorth  v.  Crompton,  1  Ch.  Ca.  196;  Killett  v. 
Killett,  1  Ball  &  B.  513  ;  3  Dow,  P.  C.  248. 

■^  Rogers  v.  Rogers,  5  P.  Wms.  193;  Sel.  Ch.  Ca.  81  ;  Mallabar  i;.  Mal- 
labar,  Cas.  t.  Talb.  78;  and  other  cases  above  cited. 

8  Birch  V.  Blagrave,  Amb.  264  ;  Woodman  v.  Morrell,  2  Freem.  33; 
Childers  v.  Childers,  1  De  G.  &  Jon.  482;  Att'y-Gen.  v.  Poulden,  8  Sim. 
472. 

9  Lloyd  t'.  Spillett,  2  Atk.  1.50;  Barn.  388;  Hutchins  v.  Lee,  1  Atk. 
488;  Young  v.  Peachy,  2  Atk.  254-257;  2  Vern.  307;  Tipton  v.  Powell,  2 
Cold.   119. 

180 


CHAP,  v.]  TRUSTS   DECLARED   AS   TO   PART.  [§  152. 

If  the  grantor  intended  a  fraud  upon  the  law,  there  can  be 
no  resulting  trust  ;i  however,  even  in  this  case,  if  tlie  grantee 
admits  the  trust,  the  court  will  enforce  it.^  If  a  conveyance 
has  been  made  upon  a  valuable  consideration,  there  can  be 
no  resulting  trust  to  the  grantor,  as  the  payment  of  a  valua- 
ble consideration  imports  an  intention  to  benefit  the  grantee 
ill  case  the  trusts  declared  fail,  or  are  imperfectly  declared, 
or  do  not  take  effect  for  any  other  reason.^ 

§  152.  Thus,  if  upon  a  conveyance,  devise,  or  bequest,  a 
trust  is  declared  of  a  part  of  the  estate  only,  or  the  purposes 
of  the  trust  do  not  exhaust  the  whole  beneficial  interest,  the 
trust  in  the  remaining  part  or  interest  will  result  to  the 
settlor  or  his  heirs;*  for  the  reason  that  a  declaration  of  trust 
as  to  part  is  considered  sufficient  evidence  that  the  settlor 
did  not  intend  the  donee  to  take  the  beneficial  interest  in 
the  whole,  and  that  the  creation  of  the  trust  was  the  sole 
object  of  the  transaction.  But  a  distinction  must  be  observed 
between  a  devise  to  a  person  for  a  particular  purpose,  with 
no  intention  of  conferring  upon  him  any  beneficial  interest, 
and  a  devise  with  a  view  of  conferring  the  beneficial  interest, 
but  subject  to  a  particular  charge,  wish,  or  desire.  Thus,  if  a 
gift  be  made  to  one  and  his  heirs,  charged  with  the  payment 
of  debts,  it  is  a  gift  for  a  particular  purpose,  but  not  for  that 

1  Cottington  v.  Fletcher,  2  Atk.  156;  Chaplin  v.  Chaplin,  3  P.  Wins. 
233;  Muckleston  v.  Brown,  6  Ves.  68. 

2  Ibid. 

8  Kerlin  u.  Campbell,  15  Pa.  St.  500;  Gibson  v.  Armstrong,  7  B.  Mon. 
481;  Brown  v.  Jones,  1  Atk.  158;  Ridout  v.  Dowding,  1  Atk.  419. 

*  Northen  ?.'.  Carnegie,  4  Drew.  587;  Lloyd  v.  Spillett,  2  Atk.  150; 
Barn.  388;  Cottington  v.  Fletcher,  2  Atk.  155;  Culpepper  v.  Aston,  2  Ch. 
Ca.  115;  Cook  o.  Gwavas,  cited  Roper  v.  Radcliffe,  9  Mod.  187;  Sherrard 
V.  Harborough,  Amb.  165;  Hobart  v.  Suffolk,  2  Vern.  644;  Halliday  v. 
Hudson,  3  Ves  210  a;  Killett  v.  Killett,  3  Dowl.  P.  C.  248;  Davidson  v. 
Foley,  2  Bro.  Ch.  203;  Levet  v.  Needham,  2  Vern.  138;  Kiricke  v.  Brans- 
bey,  2  Eq.  Ca.  Ab.  508;  Robinson  v.  Taylor,  2  Bro.  Ch.  589;  Mapp  v. 
Elcock,  2  Phill.  793;  3  H.  L.  Ca.  492;  Read  v.  Stedman,  26  Beav.  495; 
Dawson  v.  Clarke,  18  Ves.  254;  Wych  v.  Packington,  3  Bro.  Ch.  44; 
Bristol  V.  Hungerford,  2  Vern.  615;  Hill  v.  Cook,  1  V.  &  B.  173;  Mullen 
V.  Bowman,  1  Coll.  N.  C.  197 ;  Loring  v.  Elliott,  16  Gray,  568. 

181 


§  152.]  RESULTING   TRUSTS.  [CHAP.  V. 

purpose  only ;  and  if  it  is  the  intention  to  confer  upon  the 
donee  of  the  legal  estate  a  beneficial  interest  after  the  partic- 
ular purpose  is  satisfied  without  exhausting  the  whole  estate, 
the  surplus  goes  to  the  donee  and  does  not  result.^  But  if 
the  gift  is  u'pon  a  trust  to  pay  debts,  that  is  a  gift  for  a  partic- 
ular purpose  and  nothing  more.  If  the  whole  estate  is  given 
for  that  one  purpose,  and  that  purpose  does  not  exhaust  the 
whole  estate,  the  remainder  results  to  the  donor  or  his  heirs.^ 
Or,  as  Vice-Chancellor  Wood  stated  the  rule:  (1)  where 
there  is  a  gift  to  one  to  enable  him  to  do  something,  where 
he  has  a  choice  whether  he  will  do  it  or  not,  then  the  gift  is 
for  his  own  benefit,  the  motive  why  it  is  given  to  him  being 
stated ;  (2)  where  you  find  the  gift  is  for  the  general  pur- 
poses of  the  will,  then  the  person  who  takes  the  estate  can- 
not take  the  surplus  after  satisfying  a  trust  for  his  own 
benefit ;  (3)  w^here  a  charge  is  created  by  the  will,  the  de- 
visee takes  the  surplus  for  his  own  benefit,  and  no  trust  is 
implied.^ 

1  Hill  V.  London,  1  Atk.  619;  King  v.  Dennison,  1  V.  &  B  260; 
Southouse  V.  Bate,  2  V.  &  B.  396;  Mullen  v.  Bowman,  1  Coll.  C.  C.  197; 
Dawson  v.  Clarke,  18  Ves.  247  ;  Walton  v.  Walton,  U  Ves.  318;  Wood  v. 
Cox,  1  Keen,  317;  2  M.  &  Cr.  684;  Downer  r.  Church,  44  N.  Y.  647; 
Clarke  v.  Hilton,  L.  R.  2  Eq.  810;  Irvine  v.  Sullivan,  L.  R.  8  P:q.  673. 

2  King  V.  Dennison,  1  V.  &  B.  272;  McElroy  v.  McElroy,  113  Mass. 
509. 

3  Bans  V.  Fewke,  2  Hem.  &  M.  60;  11  Jur.  (n.  s.)  669;  Sanderson's 
Trust,  3  K.  &  J.  497;  Saltmarsh  v.  Barrett,  29  Beav.  474;  3  De  G.,  F.  & 
J.  279;  Pollard's  Trusts,  32  L.  J.  Ch.  657;  Henderson  v.  Cross,  17  Jur. 
(n.  s.)  177;  Hale  v.  Home,  21  Grat.  112.  In  Cooke  v.  Stationers'  Co.,  3 
My.  &  K.  262,  Sir  John  Leach  said  :  "  If  the  devise  to  a  particular,  or  for 
a  particular  purpose,  be  intended  by  the  testator  to  be  an  exception  from 
the  gift  to  the  residuary  devisee,  the  heir  takes  the  benefit  of  the  failure; 
but  if  it  be  intended  to  be  a  charge  only  upon  the  estate  devised,  and  not 
an  exception  from  the  gift,  the  devisee  will  be  entitled  to  the  benefit  of 
the  faihire."  Thus  if  lands  be  devised  to  A.  charged  with  a  legacy  to  B. 
if  he  attain  the  c^g&  of  twenty-one,  the  devise  will  become  absolute  in  A. 
if  B.  dies  before  he  becomes  twenty-one.  And  the  will  is  to  read  as  if  B. 
was  not  named  in  it.  Tregonwell  c.  Sydenham,  3  Dow,  210;  Sprigg  v. 
Sprigg,  2  Vern.  394;  Cruse  v.  Barley,  3  P.  Wms.  20;  Att'y-Gen.  r.  Mil- 
ner,  3  Atk.  112;  Croft  v.  Slee,  4  Ves.  60;  Sutcliffe  t-.  Cole,  3  Drew.  185; 
Jackson  v.  Hurlack,  2  Eden,  263;  Tucker  v.  Kayess,  4  K.  &  J.  339. 

182 


CHAP,  v.]  TRUSTS   DECLARED    AS   TO   PART.  [§  154. 

§  153.  If  from  the  whole  instrument  there  can  be  gathered 
an  intention  to  benefit  the  donee,  no  trust  in  the  remainder 
will  result,  as  where  a  man  made  his  dearly  beloved  wife  his 
sole  heiress  and  executrix  to  pay  his  debts  and  legacies,  and 
there  was  a  residue  after  paying  debts  and  legacies,  there  was 
no  resulting  trust,  for  the  expressions  in  the  will  indicated  an 
intention  to  benefit  the  donee.^  So  any  other  expressions 
that  indicate  an  intention  that  the  donee  shall  be  benefited 
after  the  particular  purposes  are  satisfied,  will  prevent  a  trust 
from  resulting.2  So  expressions  of  affection  or  relationship 
will  be  evidence  upon  the  question  whether  a  trust  was  in- 
tended to  result  after  the  particular  trusts  are  satisfied.'^  If 
the  donee  is  an  infant  incapable  of  executing  a  trust,  or  a 
married  woman,  it  will  be  evidence  upon  the  same  question.^ 
But  if  from  the  whole  will  it  is  apparent  that  the  donee  shall 
not  take  a  beneficial  interest,,  all  such  circumstances  go  for 
nothing.^ 

§  154.  If  the  donee,  to  whom  an  estate  is  given  upon  a 
trust  declared  as  to  part,  is  also  the  heir,  or  other  person  to 
whom  the  trust  for  the  remainder  would  result,  or  if  he  is 
one  of  a  class,  such  gift  to  him  will  not  prevent  him  from 
taking  by  the  resulting  trust  the  part  that  may  come  to  him.® 
So  a  legacy  or  other  beneficial  gift  to  him  will  not  exclude 
him  from  the  resulting  interest,'^  even  if  the  interest  given 
him  is  to  arise  out  of  the  declared  trust.^ 

1  Rogers  v.  Rogers,  3  P.  Wms.  193;  Cook  v.  Hutchinson,  1  Keen,  42. 

■^  Meredith  v.  Heueage,  1  Sim.  555;  Wood  v.  Cox,  2  M.  &  Cr.  692; 
Cook  V.  Hutchinson,  1  Keen,  42. 

3  Rogers  v.  Rogers,  3  P.  Wms.  193;  Coningham  v.  Mellish,  Pr.  Ch.  31 ; 
King  r.  Dennison,  1  V.  &  B.  274;  Hobart  v.  Suffolk,  2  Vern.  644. 

*  Williams  v.  Jones,  10  Vesey,  77;  Blinkhorn  v.  Feast,  2  Vesey, 
Sr.  27. 

5  King  V.  Mitchell,  8  Pet   349;  King  v.  Dennison,  1  V.  &  B.  275. 

6  Ilennershotz's  Estate,  16  Pa.  St.  435. 

^  Farrington  t'.  Knightly,  1  P.  Wms.  545  ;  Rutland  v.  Rutland,  2  P. 
Wms.  213;  Andrews  v.  Clark,  2  Ves.  Sr.  162;  North  v.  Pardon,  2  Ves. 
Sr.  495. 

8  Starkey  v.  Brooks,  1  P.  Wms.  390;  Randal  v.  Bookey,  2  Vern.  425; 
Pr.  Ch.  162;  Killett  v.  Killett,  1  B.  &  B.  543;  3  Dowl.  P.  C.  248. 

183 


§  156.]  RESULTING   TRUSTS.  [CHAP.  V. 

§  155.  The  doctrine  of  resulting  trusts,  where  a  trust  is 
declared  as  to  part  only,  was  formerly  much  discussed  in 
cases  of  gifts  to  executors  for  the  payment  of  debts  and  lega- 
cies. In  such  cases  at  common  law  the  appointment  of  the 
executor  entitled  him,  both  at  law  and  equity,  to  all  the  re- 
mainder of  the  personal  property  after  the  payment  of  debts 
and  legacies,  unless  it  was  specially  disposed  of  by  the  testa- 
tor in  the  will.  Courts  were  always  astute  to  find  circum- 
stances to  repel  the  beneficial  interest  in  the  executor,  and 
to  raise  a  resulting  trust  for  the  next  of  kin,  or  heir-at-law ; 
and  it  was  finally  enacted,  1  Will.  IV.,  c.  40,  that  such  ex- 
ecutors should  be  trustees  of  any  residue,  unless  it  plainly 
appeared  by  the  will  that  they  were  intended  to  take  the 
residue  beneficially.^  In  the  United  States  the  rule  never 
prevailed,  but  executors  always  took  as  trustees  for  those  en- 
titled to  the  distribution  of  the  personal  estate,  unless  it  was 
expressly  disposed  of  to  some  other  persons,  or  unless  it  was 
expressly  given  to  the  executor  beneficially .^ 

§  156.  In  this  connection  an  important  exception  to  the 
general  doctrine  of  resulting  trusts  should  be  stated.  If  prop- 
erty is  given  to  trustees  by  grant  or  devise  for  charitable  uses 
generallij^  and  the  particular  purpose  is  not  declared  at  all, 
or,  if  declared,  does  not  exhaust  the  whole  estate,  there  will  be 
no  resulting  trust  for  the  donor,  his  heirs,  or  next  of  kin,  in 
either  case ;  nor  will  the  donees  take  any  beneficial  interest, 
but  the  court  will  direct  the  trustees  to  administer  the  whole 
estate  under  some  scheme  for  charitable  purposes.^ 

1  See  2  Story,  Eq.  Jur.  §  1208,  and  the  elaborate  note  cited  from  Fon. 
Eq.  B.  2,  c.  5,  §  3,  note  (k). 

2  Hill  on  Trustees,  1234  (Am.  ed.);  2  Story,  Eq.  Jur.  §§  1208,  1209  ^ 
as  the  doctrine  has  never  prevailed  in  America,  it  is  not  worth  while  to 
state  all  the  learning  and  nice  distinctions  of  the  courts.  They  will  be 
found  in  Hill,  Story,  and  Fonblanque  as  above  cited. 

3  Cook  V.  Dunkenfield,  2  Atk.  567;  Metford  School,  8  Co.  130;  Mog- 
gridge^^  Thackwell,  7  Ves.  73:  Att'y-Gen.  v.  Bristol,  2  J.  &  W.  308; 
Mills  V.  Farmer,  1  Mer.  55;  Att'y-Gen.  v.  Haberdashers'  Co.,  4  Bro.  Ch. 
103;  seejoo.s?,  chapter  upon  Charitable  Trusts,  where  this  matter  is  stated 
at  large. 

184 


CHAP,  v.]      WHERE   TRUST    FAILS    OR    IS    NOT    DECLARED.       [§  157. 

§  157.  If  a  gift  is  made  by  deed  or  will  upon  trust,  and  no 
trust  is  declared,!  or  a  bequest  is  made  to  one  named,  as  ex- 
ecutor, "  to  enable  him  to  carry  into  effect  the  trusts  of  the 
will,"  and  none  are  declared,-  or  a  gift  is  made  upon  trusts 
thereafter  to  be  declared,  and  no  declaration  is  ever  made,^ 
the  legal  title  only  will  pass  to  the  grantee  or  devisee,  while 
a  trust  in  the  equitable  interest  will  result  to  the  settlor,  his 
heirs,  or  legal  representatives,  according  to  the  nature  of  the 
property,  whether  real  or  personal ;  for  it  appears  upon  the 
instrument  itself  that  the  legal  title  alone  was  intended  for 
the  first  talier,  and  that  the  equitable  interest  was  intended 
to  go  to  some  other  person,  and  as  such  other  person  cannot 
take  the  equitable  interest  for  want  of  a  declaration  of  the 
trust,  it  results  to  the  settlor  or  his  heirs.*  So  if  a  testator 
says  that  he  gives  the  residue,  and  stops  there,^  or  if  he  can- 
cels a  residuary  bequest  by  drawing  a  line  through  it.^  But 
if  it  should  plainly  appear  from  the  whole  instrument  that 
the  donee  is  to  take  beneficially  in  case  the  trusts  are  not 
declared,  no  trust  will  result  to  the  owner  or  heir." 

1  Att'y-Gen.  v.  Windsor,  8  H.  L.  Ca.  369;  24  Beav.  679;  Gloucester 
V.  Wood,  1  H.  L.  Ca.  272;  3  Hare,  131;  Dawson  v.  Clark,  18  Ves.  254; 
Dunnage  v.  White,  1  J.  &  W.  583;  Morice  v.  Durham,  10  Ves.  537; 
Woollett  c.  Harris,  5  Madd.  452;  Southouse  v.  Bate,  2  Ves.  &  B.  396; 
Goodere  v.  Lloyd,  3  Sim.  538;  Pratt  v.  Sladilen,  14  Ves.  198;  Anon.,  1 
Com.  345;  Penfold  v.  Bouch,  4  Hare,  271;  Brown  v.  Jones,  1  Atk.  101; 
Sidney  v.  Shelley,  19  Ves.  359;  Emblyn  v.  Freeman,  Pr.  Ch.  542;  Coard 
V.  Holderness,  20  Beav.  147  ;  Longley  v.  Longley,  L.  R.  13  Eq.  137. 

2  Barrs  v.  Fewke,  2  Hem.  &  M.  60. 

3  London  v.  Garway,  2  Vern.  571;  Collins  v.  Wakeman,  2  Ves.  Jr. 
683;  Emblyn  v.  Freeman,  Pr.  Ch.  541;  Fitch  v.  Weber,  6  Hare,  145; 
Brookman  v.  Hales,  2  V.  &  B.  45;  Brown  v.  Jones,  1  Atk.  188;  Sidney  v. 
Shelley,  19  Ves.  3.r2;  Taylor  v.  Haygarth,  14  Sim.  8;  Flint  v.  Warien,  16 
Sim.  124;  Onslow  v.  Wallis,  1  H.  &  Tw.  513;  1  McN.  &  G.  506  ;  Jones  v. 
Goodchild,  3  P.  Wms.  33;  Sturtevant  v.  Jaques,  14  Allen,  526;  Shaw  v. 
Spencer,  lOO  Mass.  388. 

4  Aston  V.  Wood,  L.  R.  6  Eq.  419;  Jones  v.  Bradley,  L.  R.  3  Eq.  635. 

5  Cloyne  v.  Young,  2  Ves.  Sr.  91;  Langham  v.  Sandford,  17  Ves.  435 ; 
Mapp  V.  Elcock,  2  Phill.  793. 

®  Mence  v.  Mence,  18  Ves.  348;  Skrymsher  v.  Northcote,  1  Swanst.  566. 
^  Sidney  v.  Shelley,  19  Ves.  352.     Whether  a  tru.st  results  to  a  debtor 
in  an  unclaimed  dividend.     Dillaye  v.  Greenougli,  45  N.  Y.  438. 

185 


§  158.]  RESULTING    TRUSTS.  [CHAP.  V. 

§  158.  It  is  to  be  observed,  however,  that  the  intention  of 
the  instrument  is  to  be  gathered  from  its  general  scope  ;  hence, 
although  the  words  upon  trust  are  very  strong  evidence  of  the 
donor's  intention  not  to  confer  the  beneficial  interest  upon  the 
donee,^  yet  it  may  be  negatived  by  the  context,  and  the  gen. 
eral  interpretation  of  the  whole  paper ;  ^  so,  if  the  donee  is 
called  a  trustee,  the  term  may  be  shown  to  apply  to  one  of  two 
funds,  and  the  donee  may  take  a  beneficial  interest  in  the 
other,^  or  it  may  be  so  used  as  to  be  a  mere  clescriptio  personce, 
and  although  no  beneficiary  is  named,  a  trust  does  not  neces- 
sarily result  to  the  grantor.^  On  the  other  hand  it  may 
appear,  from  the  whole  instrument,  that  the  donee  is  not  to 
take  the  beneficial  interest,  although  the  words  vpon  trust,  or 
trustee,  are  not  used ;  as  where  there  is  a  direction  that  the 
donee  shall  be  allowed  his  costs  and  expenses  out  of  the  fund 
given  him,  which  would  be  without  meaning  if  he  took  the 
whole  beneficial  interest  in  the  fund.^  But  if  the  conveyance 
is  by  deed  for  a  valuable  consideration,  the  grantee  will  take 
the  beneficial  interest  if  the  trusts  fail  to  be  declared,  or  fail 
in  any  way ;  for  there  can  be  no  resulting  trusts  where  the 
grantee  pays  a  valuable  consideration  for  the  estate.^  "Where 
a  will  contained  in  substance  this  clause,  '"  I  give  to  my  ex- 
ecutor, P.,  $800  to  have  and  to  hold  the  same  to  the  use  of  S. 
as  follows :  I  desire  in  case  S.  should  at  any  time  need  assist- 
ance or  come  to  want,  that  my  executor  should  expend  such 
part  of  said  -$800  as  will  make  her  comfortable  and  keep  her 
so  during  her  life.    The  remainder,  if  any,  of  said  (^800,  at  the 

1  Hill  i:  London,  1  Atk.  618  ;  Woollett  r.  Harris.  5  Md.  452;  Sturtevant 
V.  Jaqiies,  14  Allen,  520;  Shaw  v.  Spencer,  100  Mass.  526. 

2  Coniuffham  v.  Mellisli,  Pr.  Ch.  31:  Dawson  v.  Clark,  15  Yes.  409;  18 
Yes.  247;  Huifhes  v.  Evans,  13  Sim.  496;  Cook  v.  Hutchinson,  1  Keen, 
42;  Dillaye  v.  Greenough,  45  N.  Y.  438. 

3  Gibbs  V.  Rumsey.  2  Y.  &  B.  294;  Pratt  v.  Sladden,  14  Yes.  193; 
Battely  t).  Windle,  2  Bro.  Ch.  31;  Bingham  v.  Stewart,  13  Minn.  106; 
Pratt  V.  Beaupre,  13  Minn.  187;  Dillaye  v.  Greenough,  45  N.  Y.  438. 

*  Dillaye  v.  Greenough,  45  N.  Y.  438. 

5  Saltmarsh  v.  Barrett,  3  De  G.,  F.  &  J.  279;  29  Beav.  474. 

6  Brown  V.  Jones,  1  Atk.  158;  Kerlin  v.  Campbell,  15  Pa.  St.  500; 
Ridout  V.  Dowding,  1  Atk.  419. 

186 


CHAP,  v.]  VOLUNTARY   CONVEYANCE.  [§  159. 

decease  of  S.  I  give  to  the  said  P.  and  his  heirs,"'  it  was  held 
that  P.  held  the  money  to  the  use  of  iS.  during  her  life,  and 
whether  she  was  in  need  or  no  must  pay  the  income  to  her,  and 
if  in  need  must  expend  for  her  such  part  of  the  jyrincipal  as 
might  be  requisite  to  make  her  comfortable.^ 

§  159.  If  a  trust  for  a  specific  purpose  fails  by  the  failure 
of  the  purpose,  the  property  reverts  to  the  donor  or  his  heirs.^ 
If  the  gift  is  made  upon  a  trust,  and  the  trust  is  insufficiently 
or  ineffectually  declared,  as,  if  it  is  too  indefinite,  vague,  and 
uncertain  to  be  carried  into  effect,  it  will  result  to  the  settlor, 
his  heirs,  or  representatives.^  Whether  a  trust  is  insufficiently 
declared  or  not,  depends  of  course  upon  the  particular  con- 
struction to  be  given  to  each  individual  deed  or  will  ;•*  and  so, 
■whether  a  trust  is  too  vague  to  be  executed  or  not,  depends 
upon  the  interpretation  given  to  each  instrument.^  If  the 
declaration  of  trust  is  too  imperfect  to  establish  that  purpose, 
and  yet  plainly  shows  that  tlie  intention  was  that  the  donee 
should  not  take  beneficially,  and  that  the  sole  purpose  of  the 
gift  or  grant  was  to  carry  out  the  purpose  of  the  trust,  which 
fails,  the  donee  will  take  in  trust  for  the  donor  or  his  heirs ; 
but  if  it  appear,  from  the  whole  instrument,  that  some  bene- 
ficial interest  was  intended  for  the  donee,  or  that  he  was 
intended  to  take  beneficially  in  case  the  particular  purpose 
fails,  no  trust  will  result,  but  he  will  take  the  estate  discharged 
of  all  burdens.^ 

1  Coburn  v.  Anderson,  131  Mass.  513. 

2  Gumbert's  App.,  110  Pa.  St.  496. 

8  Williams  v.  Kershaw,  5  CI.  &  Fin.  Ill;  Ellis  v.  Selby,  7  Sim.  352; 
1  M.  &  C  280;  Fowler  v.  Garlike,  1  R.  &  M.  232;  Morice  v.  Durham,  9 
Ves.  399;  10  Ves.  522;  Kendall  v.  Granger,  5  Beav.  300;  Vesey  v.  Jam- 
son,  1  S  &  S.  69:  Stubbs  v.  Sargon,  3  M.  &  C.  500;  2  K.  255;  Leslie  v. 
Devonshire,  2  Bro.  Ch.  187;  James  v.  Allen,  3  Mer.  17;  Sturtevant  v. 
Jaques,  14  Allen,  526;  Shaw  r.  Spencer,  100  Mass.  388. 

"  Elhs  V  Selby,  1  M.  &  K.  298. 

5  Ibid. 

•>  Gibbs  V.  Rurasey,  2  Ves.  &  B.  294;  Cawood  v.  Thompson,  1  Sm.  & 
Gif.  409;  Lomax  v.  Ripley,  3  Sm.  &  Gif.  48;  Hughes  v.  Evans,  13  Sim. 
496;  Ralston  c.  Telfair,  2  Dev.  Eq.  255. 

187 


§  160.]  RESULTING   TRUSTS.  [CHAP.  V. 

§  160.  Where  a  gift  is  made  upon  trusts  that  are  void,  in 
whole  or  in  part,  for  illegality,^  or  that  fail  by  lapse,  or  other- 
wise, during  the  life  of  the  donor,^  a  trust  will  result  to  the 
donor,  his  heirs,  or  legal  representatives,  if  the  property  is 
not  otherwise  disposed  of.  Thus,  where  the  gift  or  trust  is 
void  by  statute,  as  a  disposition  in  favor  of  persons  or  objects 
prohibited  from  taking,^  or  given  at  a  time  and  in  a  manner 
forbidden,  as  in  violation  of  the  statutes  of  mortmain,  or  sim- 
ilar statutes,*  or  where  the  gift  contravenes  some  policy  of 
the  law,  as  tending  to  a  perpetuity,-^  or  where  it  fails  by  the 
death  of  the  beneficial  donee  or  cestui  que  trusty  a  trust,  to 
the  extent  of  the  estate  given,  will  result  to  the  donor,  or  his 
heirs,  or  legal  representatives,  if  it  is  not  otherwise  disposed 
of.  If  the  purposes  of  a  trust  fail  or  are  completely  per- 
formed, the  trustees  hold  the  estate  for  the  heirs  at  law  as  a 
resulting  trust.''  So  if  a  trust  for  a  particular  purpose  fail,  by 
the  dissolution  of  a  corporation,  or  other  organized  body,  a 

1  Turner  v.  Russell,  10  Hare,  204;  Cook  v.  Stationers'  Co.,  3  M.  &  K. 
262 ;  Carrick  f.  Errington,  2  P.  Wms.  361;  Tregonwell  i'.  Sydenham,  3 
Dow,  194;  Arnold  v.  Chapman,  7  Ves.  108;  Jones  v.  Mitchell,  1  8.  &  S 
290 ;  Page  v.  Leapingwell,  18  Ves.  463 ;  Pilkington  v.  Boughey,  12  Sim 
114;  Gibbs  v.  Rumsey,  2  Ves.  &  B.  294;  Stevens  v.  Ely,  1  Dev,  Eq.  493 
Dashiel  v.  Att  -Gen.,  6  Har.  &  J.  1 ;  Lemmond  v.  People,  6  Ired.  Eq.  137 

2  Williams  v.  Coade,  10  Ves.  300;   Ackroyd  v.   Smithson,  1  Bro.  Ch 
503;  Spink  v.  Lewis,  3  Bro.  Ch.  33.5;  Muckleston  v.  Brown,   6  Ves.  63 
Davenport  v.  Coltman,  12   Sim.  610;   Cruse  v.  Barley,   3  P.   Wms.  22 
Hutcheson  v.  Hammond,  3  Bro.  Ch.  128;  Hawley  v.  James,  5  Paige,  318; 
Gwynn  v.  Gwynn,  27  S.  C.  526. 

^  Carrick  v.  Errington,  2  P.  Wms.  361 ;  Davers  v.  Dewes,  3  P.  Wms.  43. 

*  Attorney-General  v.  Weymouth,  Amb.  20;  Jones  v.  Mitchell,  1  S.  & 
S.  294;  West  v.  Shuttleworth,  2  M  &  K.  684;  Acts  39  &  40  Geo.  IV.  c. 
98;  Eyre  v.  ]\Iarsden,  2  Keen,  564;  McDonald  v.  Brj'ce,  Id.  276;  Lemmond 
V.  People,  6  Ired.  Eq.  137. 

^  Tregonwell  v.  Sydenham,  3  Dow,  194;  Leake  v.  Robinson.  2  Mer. 
363;  Marshall  v.  HoUoway,  2  Swanst.  432;  Southampton  v.  Hertford,  2  V. 
&  B.  54;  Curtis  v.  Lukin,  5  Beav.  147;  Boughton  v.  James,  1  Call,  26  ;  1 
H.  L.  Ca.  406;  Brown  v.  Stoughton,  14  Sim.  369;  Scarisbrick  v.  Skelmers- 
dale,  17  Sim.  187;  Fiirrin  v.  Newcomb,  3  K.  &  J.  16. 

«  Ackroyd  v.  Smithson,  1  Bro.  Ch.  503 ;  Cox  v.  Parker,  22  Beav.  188 ; 
Barker  r.  Reilly,  4  Del.  Ch.  72 ;  Bond  v.  Moore,  90  N.  C.  239. 

'  Packard  v.  Marshall,  138  Mass.  303. 
188 


CHAP,  v.]  VOLUNTARY   CONVEYANCE.  [§  160  rt. 

trust  created  for  their  particular  benefit  will  result  to  the 
donor's  hcirs.^  All  that  the  donor  has  not  given  out  of  him- 
self remains  in  him,  and  if  he  has  not  provided  to  whom  the 
property  shall  belong  on  failure  or  determination  of  the  trust, 
that  right  is  still  his,  and  he  may  convey  the  property  subject 
to  the  trust.^  In  all  cases,  if  the  trust  arises  or  results  by 
presumption  of  law,  it  may  be  rebutted  as  to  instruments 
inter  vivos  by  parol  evidence  that  it  was  the  intention  of  the 
settlor  that  the  donee  should  take  the  surplus  beneficially, 
or  the  whole  estate  if  the  trust  failed  in  toto  ;  ^  but  where  the 
trust  results,  not  by  presumption  of  law  nor  from  the  facts 
and  circumstances,  but  from  the  construction  and  force  of  a 
written  instrument,  no  parol  evidence  can  be  introduced  to 
control  such  construction  and  force.* 

§  160  a.  In  England,  the  heir  and  the  next  of  kin  or  legal 
representatives  are  not  the  same  persons,  or  they  have  not 
the  same  rights  and  interests ;  consequently  questions  of 
some  difficulty  arise  as  to  whether  a  trust  in  property  results 
to  the  heir,  or  to  the  next  of  kin,  or  the  legal  representa- 
tives. The  general  rule  is,  if  the  property  is  real  estate,  that 
the  trust  results  to  the  heir  ;  if  personal  property,  to  the 
next  of  kin  under  the  statutes  of  distribution,  or  to  the  legal 
representatives.  But  suppose  a  testator  has  devised  real 
estate  in  trust  and  directed  it  to  be  sold  and  the  proceeds 
applied  to  purposes  named,  and  the  real  estate  is  converted 
into  money,  and  the  trust  fails  in  whole  or  in  part ;  or  sup- 
pose money  is  given  in  trust,  and  there  is  a  direction  to 
invest  it  in  lands,  which  is  done,  and  the  trust  fails,  to  whom 
does  the  trust  result,  to  the  heir  as  real  estate,  or  to  the  next 
of  kin  as  personal  property  ?  Such  questions  are  not  impor- 
tant in  the  United  States,  for  the  reason  that  in  most  if  not 
all  the  States  the  same  persons  take  both  the  real  and  per- 
sonal estate  of  an  ancestor  in  the  same  proportion  and  with 

^  Easterbrooks  xi.  Tillinghast,  5  Gray,  17. 

2  Schlessinger  v.  Mallard,  70  Cal.  326. 

8  Ante,  §§  130,  140,  145,  147;  Cook  v.  Hutchinson,  1  Keen,  50. 

*  Ante,  §  150;  Langham  v.  Sanford,  17  Ves.  442. 

189 


§  IGO  a.]  RESULTING   TRUSTS.  [CHAP.  V. 

the  same  rights,  and  it  is  comparatively  unimportant  whether 
the  trust  results  as  real  or  personal  property .^  There  is, 
however,  one  question  still  important  in  the  United  States, 
and  that  is,  does  the  trust  result  to  the  heirs-at-law,  or  to 
the  residuary  devisees  or  legatees  ?  The  donor,  settlor,  or 
testator  still  retains  such  an  interest  in  property  given  by 
him  in  trust,  that  the  interest  which  results  upon  the  failure 
of  the  trusts  created  by  him  may  be  devised  by  him,  and 
the  question  in  each  case  is  whether  the  resulting  interest 
becomes  a  part  of  the  residue  and  passes  to  the  residuary 
legatee,  if  there  is  one,  or  whether  it  passes  to  the  heirs. 
The  question  may  be  stated  in  another  form,  thus  :  has  the 
testator  died  intestate  as  to  the  interests  which  result  to  him 
upon  a  failure  of  the  trusts,  or  do  the  provisions  of  the  will 
embrace  such  interests  and  convey  them  to  some  person  or 
persons,  or  class  of  persons  named  ?  The  distinction  between 
the  heirs  and  the  residuary  legatees  is  that  the  residuary  leg- 
atees claim  under  the  will,  and  the  heirs  claim  dehors  the 
will.  All  the  cases  that  can  arise  must  depend  upon  the  in- 
tention of  the  donor  or  settlors,  and  upon  the  construction 
of  each  particular  will.  If  the  subject-matter  of  the  bequest 
that  fails  is  personal  estate,  the  residuary  legatee  will  take 
all  that  results ;  for  a  general  residuary  bequest  is  always 
held  to  carry  every  interest,  whether  undisposed  of  in  the 
will,  or  undisposed  of  in  any  event.'^      Therefore  it  is  only 

^  See  all  the  English  cases  cited  and  the  nice  distinctions  drawn, 
Lewin  on  Trusts,  121-132  (5th  ed.);  Hill  on  Trustees,  127-U3. 

2  Dawson  v.  Clarke,  15  Ves.  417;  Brown  v.  Higgs,  4  Ves  70S;  8  Ves. 
570;  Shanley  v.  Baker,  4  Ves.  732;  Oke  v.  Heath,  1  Ves.  141;  Cambridge 
V.  Rous,  8  Ves.  25;  Cooke  v.  Stationers'  Co.,  3  M.  &  K.  264;  Bland  v. 
Bland,  2  J.  &  W.  406;  Jones  i>.  Mitchell,  1  S.  »fe  S.  298.  Sir  William 
Grant  said  that  it  must  be  a  very  peculiar  case  indeed  in  which  there  can 
be  at  once  a  residuary  clause  and  a  partial  intestacy  unless  some  part  of 
the  residue  be  ill  given.  Leake  c.  Robinson,  2  Mer.  392;  King  v.  Wood- 
hull,  3  Edw.  Ch.  79;  Swinton  v.  Egleston,  3  Rich.  Eq.  201;  Hamberlin 
t'.  Terry,  1  Sra.  &  M.  Ch.  589;  Johnson  v.  Johnson,  3  Ired.  Eq.  427; 
Marsh  V.  Wheeler,  2  Edw.  Ch.  156;  Com.  i'.  Nase,  1  Ashm.  242;  Wool- 
nier's  Est.,  3  Whart.  879;  Taylor  v.  Lucas,  4  Hawks,  215;  Pool  v  Harri- 
son. 18  Ala.  515;  Vick  v.  McDaniel,  3  How.  (Miss.)  337,  Bryson  v. 
Xichols,  2  Hill,  Ch.  113. 

190 


CHAP,  v.]  VOLUNTARY   CONVEYANCE.  [§  161. 

where  the  will  contains  no  residuary  clause  that  the  next 
of  kin  (or  heirs  in  the  United  States)  can  assert  any  claim. 
There  is,  however,  this  obvious  remark  to  be  made  :  that 
if  the  residuum  is  itself  given  upon  a  trust  that  fails,  it  of 
course  results  to  the  next  of  kin  or  heirs.^  But  a  different 
rule  is  applied  at  common  law  to  gifts  of  real  estate.  If  real 
estate  was  bequeathed  upon  trusts  that  were  void,  or  that 
failed,  the  real  estate  did  not  pass  to  the  residuary  devisee, 
but  resulted  to  the  heir-at-law,  for  the  reason  that  nothing 
passed  by  the  gift  of  the  residue  except  what  was  intended 
to  pass,  and  a  bequest  of  real  estate  for  a  particular  purpose 
indicated  a  plain  intention  not  to  embrace  it  in  the  residuary 
bequest,  and  although  it  might  be  void  or  fail,  yet  it  was  so 
far  operative  as  to  indicate  the  intention  of  the  donor  not  to 
allow  it  to  pass  under  the  residuary  clause  of  the  will.  The 
common  law  was  altered  by  1  Vict.  Ch.  26,  and  real  estate 
is  governed  by  the  same  rule  as  personal  estate.^ 

§  161.  It  was  formerly  said  that  if  a  man  conveyed  his 
estate  to  a  stranger  without  consideration,  or  for  a  mere  nom- 
inal one,  a  trust  resulted  to  the  owner,  on  the  ground  that 
the  law  would  not  presume  a  man  to  part  with  his  property 
without  some  inducement  thereto.^  This  was  in  strict  anal- 
ogy to  the  common  law,  whereby,  if  a  feoffment  was  made 
without  consideration,  the  legal  title  onlij  passed  to  the  feof- 

1  Skrymsher  v.  Northcote,  1  Swansfc.  566;  McDonald  v.  Bryce,  2  Keen, 
276;  Eyre  v.  Marsden,  2  Keen,  561 ;  Woolmer's  Est.,  3  Whart.  477;  John- 
son y.  Claikson,  3  Rich.  Eq.  305  ;  Salt  v.  Chattaway,  3  Beav.  576;  Floyd 
V.  Barker,  1  Paige,  480;  Frazier  v.  Frazier,  2  Leigh,  642;  Trippe  v. 
Frazier,  4  H.  &  J.  446. 

'^  In  the  United  States  there  is  considerable  variety  in  the  decisions  of 
the  courts,  if  not  some  uncertainty  in  the  law,  where  it  is  not  determined 
by  statute.  See  a  very  learned  discussion  of  the  law  in  New  York  in 
Van  Kluck  v.  Dutch  Reformed  Church,  6  Paige,  600,  20  Wend.  458.  In 
Mas.sachu.setts,  Ilayden  v.  Stoughton,  5  Pick.  528;  Brigham  v.  Shattuck, 
10  Pick.  306;  Clapp  v.  Stoughton,  Id.  463;  4  Kent,  Com.  541. 

8  Lewin  on  Trusts,  116  (5th  Lond.  ed  ),  and  cases  cited;  Tolar  v. 
Tolar,  1  Dev.  Eq.  450;  2  Story,  Eq.  Jur.  §  1199;  Cecil  v.  Butcher,  2  J.  & 
W.  573;  Souerbye  i;.  Arden,  1  Johns.  Ch.  240. 

191 


§  162.]  RESULTING   TRUSTS.  [CHAP.  V. 

fee,  and  a  use  resulted  to  the  feoffor.^  In  conformity  with 
this  rule,  Mr.  Cruise  lays  it  down,  that  if  the  legal  estate  in 
lands  is  conveyed  to  a  stranger  without  any  consideration, 
there  arises  a  resulting  trust  to  the  original  owner  ;2  for 
where  there  is  neither  consideration,  nor  declaration  of  use, 
to  show  the  intention  of  the  parties,  it  cannot  be  supposed 
that  the  estate  was  intended  to  be  given  away.^  And  tlie 
burden  was  put  upon  the  grantee  to  show  the  consideration, 
and  upon  failure  of  proof,  a  use  was  presumed  to  the  grantor, 
for  the  reason,  as  stated  by  Sir  Francis  Bacon,  that  when 
feoffments  were  made,  it  grew  doubtful  whether  estates  were 
in  use  or  purchase ;  and  as  purchases  were  things  notorious, 
and  uses  were  things  secret,  the  Chancellor  thought  it  more 
convenient  to  put  the  purchaser  to  prove  his  consideration 
than  the  feoffor  to  prove  his  trust,  and  so  made  intend- 
ment toward  the  use,  and  put  the  purchaser  to  the  proof 
of  his  purchase.*  To  the  same  effect  are  Coke  on  Little- 
ton and  many  of  the  older,  and  some  of  the  more  modern, 
authorities.^ 

§  162.  But  the  rule  that  a  trust  resulted  to  the  grantor 
upon  a  voluntary  conveyance  was  confined  to  common-law 
conveyances  or  assurances,  such  as  feoffments,  grants,  fines, 
recoveries,  and  releases  which  operated  without  considera- 
tion, and  vested  the  estate  in  the  alienee  by  the  act  itself, 
as  by  livery  of  seizin  ;  ^  although  it  was  always  doubtful 
whether  a  use  could  result  from  a  conveyance  by  lease  and 

1  Dyer  v.  Dyer,  2  Cox,  92;  Pinney  v.  Fellows,  15  Vt.  538;  Botsford  v. 
Burr,  2  Johns.  Ch.  405. 

2  Cruise,  Dig.  tit.  12,  c.  1,  §  52;  tit.  11,  c.  4,  §  16. 

3  Cruise,  Dig.  tit.  11,  c.  4,  §  16  et  seq. 
*  Bacon  on  Uses,  317. 

5  1  Inst.  23  a,  271  a;  Dyer,  166  a,  186  b;  11  Mod.  182;  Cleve's  Case,  6 
Rep.  17  b ,  Woodliffe  v.  Drury,  Cro.  Eliz.  439 ,  Duke  of  Xorfolk  v.  Brown, 
Pr.  Ch.  80;  Warman  v.  Seaman,  2  Freera.  308  ;  Hayes  v.  Kingdome,  1 
Vern.  33;  Grey  v.  Grey,  2  Swanst.  598;  Elliot  v.  Elliot,  2  Ch.  Ca.  232  ; 
Attorney- General  v.  Wilson,  1  Cr.  &  Ph.  1 ;  Sculthorpe  v.  Burgess,  1  Ves. 
Jr.  92;  Tyrrell's  Case,  2  Freetn.  304  ;  Ward  v.  Lant,  Pr.  Ch.  182. 

«  Crui.se,  Dig.  tit.  11,  c.  4,  §  16. 

192 


CHAP,  v.]  VOLUNTARY   CONYEYANCE.  [§162. 

release,  even  though  it  was  voluntary,  and  no  uses  were  de- 
clared ;  for  the  extinguishment  of  the  estate  of  the  lessee  was 
a  good  consideration,  yet  such  a  conveyance  was  a  strict  com- 
mon-law convey ance.i  This  rule  does  not  apply  to  modern 
conveyances,  and  no  trust  is  now  held  to  result  to  a  grantor 
although  he  conveys  his  estate  without  consideration.^  At 
the  present  day  almost  all  conveyances  are  in  form  deeds  of 
hargain  and  sale,  and  operate  to  pass  the  estate  by  virtue 
of  the  statute  of  uses,  or  of  statutes  in  the  several  States 
prescribing  the  formalities  necessary  to  convey  lands.  Under 
the  statute  of  uses,  the  bargain  between  the  bargainor  and 
the  bargainee,  and  the  consideration,  raised  a  use  in  the  bar- 
gainee ;  the  statute  immediately  stepped  in  and  vested  the  legal 
title  in  the  same  person  for  whom  a  beneficial  use  had  been 
raised  by  the  bargain.  In  conveyances  that  are  in  form  deeds 
of  bargain  and  sale,  parol  evidence  cannot  be  received  to  con- 
trol or  contradict  the  statement  of  the  consideration.  Such  a 
statement  is  a  solemn  and  essential  part  of  the  deed,  and  its 
existence  cannot  be  disproved  by  parol,^  althougli  it  is  allowed 
so  far  to  control  the  statement  as  to  the  payment  of  it,  as  to 
show  that  it  still  exists  as  a  debt  due  from  the  grantee  to  the 
grantor.*     And  so  in  States  where  it  is  declared  by  statute, 

1  Cruise,  Dig.  tit.  32,  c.  11,  §  17. 

2  Hutchins  v.  Lee,  1  Atk.  447;  Lloyd  v.  Spillett,  2  Atk.  150;  Young  v. 
Peachy,  Id.  2-37;  Burn  v.  Winthrop,  1  Johns.  Ch.  329;  Graff  v.  Rohrer, 
35  Md.  327;  Hogan  v.  Jaques,  19  N.  J.  Ch.  123;  Bust  v.  Wilson,  28  Cal. 
632;  Jackson  v.  Cleveland,  15  Mich.  94;  Ownes  v.  Ownes,  8  C.  E.  Green, 
60.  But  see  McKenney  v.  Burns,  31  Ga.  295,  and  Haigh  v.  Kaye,  L.  R. 
7  Ch.  469;  Blodgett  v.  Hildreth,  103  Mass.  48G  •,  Stevenson  v.  Crapnell, 
114  111.  19. 

8  Leman  v.  Whitley,  4  Russ.  423;  Philbrook  v.  Delano,  29  Me.  410 
Graves  v.  Graves,  29  X.  H.  129;  Randall  v.  Rhillips,  3  Mason,  388 
Hutchinson  v.  Tindall,  2  Green,  Ch.  357;  Alison  v.  Kurtz,  2  W^atts,  187 
Wilkinson  v.  Wilkinson,  2  Dev.  Eq.  376;  Morris  v.  Morris,  2  Bibb,  311 
Movan  v.  Hayes,  1  Johns.  Ch.  339;  Rathbun  v.  Rathbun,  6  Barb.  98 
Balbeck  u.  Donaldson,  6  Am.  Law  Reg.  148;  Graff  v.  Rohrer,  35  Md.  327 

4  Leman  v.  Whitley,  4  Russ.  423 ;  Graves  v.   Graves,  29  N.   H.  129 
Philbrook  v.  Delano,  29  Me.  410;  Randall  v.  Phillips,   3  Mason,  388 
Thomas  v.  McCormack,  9  Dana,  188;  Radsall  v.  Radsall,  9  W^is.  379;  Far- 
rington  v.  Barr,  36  N.  H.  86. 

VOL.  I. -13  193 


§  162.]  RESULTING   TRUSTS.  [CHAP.  V. 

as  ill  Massachusetts,^  that  deeds  duly  executed,  acknowl- 
edged, and  recorded  shall  be  effectual  to  pass  the  estate 
without  other  ceremony,  it  is  not  competent  to  control  the 
effect  of  such  deeds  by  parol,  or  to  engraft  uses,  trusts,  or 
other  limitations  upon  them  not  contained  in  the  instruments 
themselves,  or  in  some  other  instrument  executed  before  or 
at  the  same  time  with  them,  in  such  manner  as  to  become  a 
part  of  them.2  To  allow  parol  evidence  to  raise  a  resulting 
trust  upon  such  deeds  would  be  to  break  in  upon  the  express 
provisions  of  the  statute  of  frauds.  Mr.  Hill  states  the  mod- 
ern rule  correctly  when  he  says,^  "  that  it  is  the  clear  result 
of  the  authorities  that  where  a  person,  a  stranger  in  blood  to 
the  donor,  and  a  fortiori  if  connected  with  him  in  blood,  is  in 
possession  of  an  estate  under  a  voluntary  conveyance  duly 
executed,  the  td^tq  fact  of  his  being  a  volunteer  will  not  of 
itself  create  any  presumption  that  he  is  a  trustee  for  the 
grantor ;  but  he  will  be  considered  entitled  to  the  enjoyment 
of  the  beneficial  interest  unless  that  title  is  displaced  by  suf- 
ficient evidence  of  an  intention  on  the  part  of  the  donor  to 
create  a  trust,  and  he  need  not  bring  proofs  to  keep  his 
estate,  but  the  plaintiff  must  bring  proofs  to  take  it  from 
him."  *  And  where  the  deed  contains  a  clause,  as  most  deeds 
do,  that  the  estate  is  had  and  held  to  the  grantee,  his  heirs 
and  assigns,  to  Jiis  and  their  use  and   behoof,  no   trust   can 

1  Gen.  Stat.  c.  89,  §  1, 

2  Gerry  v.  Stimson,  60  Me.  186;  Titcomb  v.  Morrill,  10  Allen,  15; 
Bartlett  v.  Bartlett,  14  Gray,  278;  Walker  i-.  Locke,  5  Cush.  90;  Blodgett 
V.  Hildreth,  103  Mass.  481;  Carnes  v.  Colburn,  104  Mass.  274;  Whitton 
V.  Whitton,  3  Cush.  191;  Philbrook  v.  Delano,  29  Ue.  410;  Graves  v. 
Graves,  29  X.  H.  129;  Rathbun  v.  Rathbun,  6  Barb.  105;  Bank  of  U.  S.  v. 
Housman,  6  Paige,  526;  Miller  v.  Wilson,  15  Ohio,  108;  Parnell  v.  Hings- 
ton,  3  Sm.  &  Gif.  337 ;  Taylor  v.  Taylor,  1  Atk.  386 ;  Dyer  v.  Dyer,  2  Cox, 
93;  Fordyce  v.  Wallis,  3  Bro.  Ch.  576 ;  Squire  v.  Harder,  1  Paige,  494 ;  Bal- 
beck  V.  Donaldson,  6  Am.  Law  Reg.  148;  Jackson  v.  Garnsey,  16  Johns. 
189;  Jackson  v.  Caldwell,  1  Cow.  622;  Farrington  v.  Barr,  36  N.  H.  431. 

3  Hill  on  Trustees,  170  (4th  Am.  ed.). 

*  Cook  w.  Fountain,  3  Swanst.   590;  Clavering  v.  Clavering,  2  Vern. 
473 ;  Boughton  v.  Boughton,  1  Atk.  625 ;  Cecil  v.  Butcher,  2  Jac.  &  W. 
573;  Jeffreys  v.  Jeffreys,  1  Cr.  &  Ph.  138  ;  Dummer  v.  Pitcher,  2  M.  &  K. 
262 ;  Leman  v.  Whitley,  4  Russ.  423 ;  Graff  v.  Rohrer,  35  Md.  327. 
194 


CHAP,  v.]  VOLUNTAEY   CONVEYANCE.  [§  164. 

result,  as  it  is  a  rule  that  when  a  use  is  declared,  no  other  use 
can  be  shown  to  result.^  A  fortiori  a  trust  deed  cannot  be 
turned  into  a  resulting  trust  for  the  grantor  by  proof  that  it 
was  without  consideration.^  And  when  a  deed  contains  cove- 
nants of  warranty,  no  use  can  result  to  the  grantor,  for  such 
covenants  estop  him  from  claiming  any  legal  or  beneficial 
interest  in  the  estate.^ 

§  163.  It  may  be  stated  that  courts  do  not  favor  voluntary 
conveyances,  and  will  not  lend  their  aid  to  enforce  them  if 
they  are  imperfectly  executed,  and  their  decrees  are  neces- 
sary to  give  them  validity  and  force.  In  such  cases  equity 
will  not  interfere,  but  will  leave  the  parties  to  their  rights  at 
law.*  And,  further,  equity  will  always  look  upon  such  con- 
veyances with  suspicion,  especially  if  made  to  strangers  for 
no  particular  purpose.  If  any  fraud  or  misrepresentation  is 
practised  upon  a  grantor,  equity  will  fasten  a  trust  upon  the 
conscience  of  the  fraudulent  grantee.^  If  fraud  upon  the 
grantor  is  alleged,  the  fact  that  the  conveyance  was  without 
consideration  is  always  considered  as  pertinent  evidence,  and 
will  be  considered  as  one  badge  of  fraud,  if  there  are  other 
facts  and  circumstances  pointing  in  that  direction.^  A  dis- 
position by  will,  however,  is  not  subject  to  these  rules,  as 
a  gift  by  will  imports  a  consideration,  and  no  averments  by 
parol  can  be  received  to  fasten  a  use  or  trust  upon  such  gift ; 
but  the  donee  mil  take  both  the  legal  and  beneficial  estate, 
unless  it  clearly  appears  from  the  whole  will  that  such  was 
not  the  intention  of  the  donor.''' 

§  164.  It  is  further  to  be  observed  that  voluntary  convey- 
ances to  a  wife  or  child  were  never  within  the  rule  that 
such  gifts  raised  a  resulting  trust  for  the  donor.  In  convey- 
ances of  this  kind  to  the  donor's  family  the  analogy  of  the 

1  Graves  v.  Graves,  29  N.  H.  129 ;  Sprague  v.  Woods,  4  "Watts  &  S. 
192;  Vandervolgen  v.  Yates,  5  Seld.  219;  Gove  v.  Learoyd,  140  Mass.  524. 

2  Bobb  V.  Bobb,  89  Mo.  419. 

8  Philbrook  v.  Delano,  29  Me.  410. 

*  Lane  v.  Ewiiig,  31  Mo.  75. 

6  Post,  Chap.  VI.  «  Post,  %  187.  '  Ante,  §  94. 

195 


§  165.]  RESULTING   TRUSTS.  [CHAP.  V. 

common  law  was  followed,  whereby,  if  a  feoffment  was  made 
to  a  stranger  without  consideration,  a  use  resulted  to  the 
feoffor  ;  but  if  a  feoffment  was  made  to  a  wife  or  child,  no 
use  resulted,  for  the  consideration  of  blood  was  held  a  good 
consideration,  and  an  advance  or  settlement  was  presumed. 
So  marriage  was  not  only  a  good  but  a  valuable  considera- 
tion, and  no  trusts  could  result  from  conveyances  made  in 
consideration  of  marriage,  either  of  the  grantor  or  of  any 
member  of  his  family.  But  if  voluntary  conveyances  to  wife 
or  children  were  made  by  a  man  deeply  indebted,  or  with 
an  intention  to  delay  his  creditors,  while  he  could  not  raise  a 
trust  in  his  own  favor,  yet  his  creditors  could  avoid  the  con- 
veyances or  raise  a  trust  upon  them  in  their  own  favor  to  the 
extent  of  their  claims.^ 

§  165.  If  the  voluntary  conveyance  is  made  for  some  ille- 
gal or  fraudulent  purpose,  whether  it  is  a  common-law  or  a 
modern  conveyance,  no  trust  will  result  to  the  grantor  ;  as,  if 
the  voluntary  conveyance  is  made  to  delay,  hinder,  and  defeat 
creditors,^  or  to  give  a  man  a  colorable  qualification  to  vote, 
or  to  sit  in  parliament,^  or  to  kill  game,*  or  to  disqualify  the 
grantor  for  an  office,^  or  to  commit  any  other  fraud,^  for  the 

1  Dunnicar.  Coy,  28  Mo.  525;  Spirett  r.  Willows,  3  De  G.,  J.  &  S. 
293;  Robinson  v.  Robinson,  17  Ohio  St.  430;  Baldwin  v.  Campfield,  4 
Halst.  Ch.  891 ;  Spicer  v.  Ayers,  2  N.  Y.  Sup.  Ct.  626. 

2  Cottington  v.  Fletcher,  2  Atk.-  15G;  Chaplin  v.  Chaplin,  3  P.  Wms 
233  ;  Muckleston  v.  Brown,  6  Ves/GB  ;  Stewart  v.  Iglehart,  7  Gill  &  J 
132  ;  Bryant  v.  Mansfield,  22  Me.  310  ;  Randall  v.  Phillips,  3  Mason,  378 
Wilson  V.  Cheshire,  1  McCord,  233;  Mason  v.  Baker,  1  A.  K.  Marsh.  208 
Chamberlayne  v.  Temple,  2  Rand.  381;  Stewart  v.  Dailey,  6  Litt.  212 
Jackson  v.  Button,  3  Har.  98;  McClure  v.  Purcel,  3  A.  K.  Marsh.  61 
Steele  v.  Worthington,  2  Ham.  82. 

3  Pitt's  Case,  cited  Amb.  266  ;  Curtis  v.  Perry,  6  Ves.  747 ;  Cutler  v. 
Tuttle,  19  N.  J.  Ch.  553,  562. 

*  Roberts  v.  Roberts,  Daniel,  143;  Brackenbury  v.  Brackenbury,  2 
Jac.  &  W.  391  ;  Cecil  v.  Butcher,  2  Jac.  &  W.  565. 

5  Birch  V.  Blagrave,  Amb.  264;  Gaskell  v.  Gaskell,  2  Y.  &  J.  502; 
Vandenberg  v.  Palmer,  4  K.  &  J.  204;  Childers  v.  Childers,  1  De  G.  &  J. 
482;  Field  v.  Lonsdale,  13  Beav.  78;  Doe  v.  Rutledge,  Cowp.  705. 

6  Tipton  V.  Powell,  2  Cold.  19;  Haigh  v.  Kaye,  L.  R.  7  Ch.  473; 
Ownes  V.  Ownes,  8  C.  E.  Green,  60;  Miller  v.  Davis,  50  Mo.  572. 

196 


CHAP,  v.]         VOLUNTARY  CONVEYANCE.  [§  165  a. 

reason  that  the  rules  of  law  cannot  be  used,  controlled,  or 
avoided  by  parties  with  a  fraudulent  intent  to  do  that  indi- 
rectly which  they  cannot  do  directly .^ 

§  165  a.  A  resulting  trust  is  to  be  performed  or  executed 
by  the  trustee  by  transferring  the  title  to  the  cestui  que  trust 
at  his  request ;  ^  but  if  the  trustee  has  incurred  any  expenses 
upon  the  estate  by  paying  taxes  or  making  improvements, 
or  advancing  part  of  the  purchase-money,  he  will  be  allowed 
to  hold  the  estate  until  his  advances  are  repaid.® 

1  Scobie  V.  Blanchard,  3  N.  H.  170;  Pritchard  v.  Brown,  4  N.  H.  401; 
Hutcliins  V.  Heywood,  50  N.  H.  488  ;  Sugd.  V.  &  P.  416. 

2  Millard  v.  Hathaway,  27  Cal.  119. 
«  Malroy  v.  Sloans,  44  Vt.  311. 

197 


CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 


CHAPTER   YI. 

CONSTRUCTIVE   TRUSTS. 

§  166.   General  nature  of  constructive  trusts.     They  arise  from  fraud. 

§  167.   Jurisdiction  of  equity  over  them,  and  the  relief  given  by  converting  the 

offending  party  into  a  trustee. 
§  168.   Classification  of  constructive  trusts. 
§  169.   General  definition  of  a  fraud  in  equity. 
§  170.   Principles  upon  which  equity  gives  relief  against  fraud. 
§171.   Actual  hand,  OT  suf/gestio  falsi. 
§  172.  Illustrations  of  actual  fraud. 

§  173.  The  misrepresentations  and  frauds  that  equity  ■will  relieve  against. 

§  174.  The  misrepresentation  must  be  of  facts  material  to  the  contract. 

§  175.  The  misrepresentation  must  be  of  something  peculiarly  within  the 

part3''s  knowledge. 
§  176.  The  relief  will  depend  upon  the  form  in  which  it  is  sought. 

§  177.  Fraud  that  arises  from  concealment,  or  suppressio  veri. 
§  178.  This  kind  of  fraud  depends  much  upon  the  relation  of  the  parties. 

§  179.  When  a  person  may  not  be  silent. 

§  180.  Suppressio  ven  is  generally  in  law  an  affirmative  act. 

§  181.   Courts  will  relieve  where  acts  are  fraudulently  prevented  from  being  done  — 

illustrations. 
§  182.  Trust  established  where  a  party  fraudulently  prevents  a  will  from  being 

made  in  another's  favor. 
§  183.    Trust  established  in  odium  spoliatoris. 

§  184.   Trust  established  upon  a  conveyance  made  in  ignorance  or  mistake. 
§  185.  But  if  the  conveyance  is  a  compromise,  courts  will  support  it  if  possible. 
§  186.   Trust  established  when  a  deed  by  mistake  contains   more  land  than   was 

intended. 
§  187.   Misrepresentation  of  the  value  of  property  and  inadequacy  of  consideration. 
§  188.  Catching  bargains  with  young  heirs  and  reversioners. 
§  189.   Trust  arising  from  mental  incapacity  or  imbecility  of  parties. 
§  190.  Mental  weakness  —  old  age. 

§  191.  Drunkenness. 

§  192.  Duress  —  oppression  and  distress. 

§  193.  Where  several  of  these  circumstances  are  found  combined. 

§  194.   Frauds  that  arise  hj  construction  from  the  fiduciary  relations  of  parties. 
§  195.  Between  trustee  and  cestui  que  trtist. 

§  196.  Renewal  of  leases  in  his  own  name  by  trustee. 

§§  197, 198.  Contracts  prohibited  between  trustee  and  cestui  que  trust,  but  the 

cestui  que  trust  alone  can  avoid  them. 
§  199.  Rule  does  not  apply  to  dry  trustees. 

§  200.  Guardians  and  wards. 

§  201.  Parents  and  children. 

198 


CHAP.  VI.]  CONSTRUCTIVE  TRUSTS.  [§  166. 

§§  202,  203.     Attorney  and  client. 

§  20-1.  Rule  applies  to  all  coutidential  advisers. 

§  205.  Administrators  and  executors. 

§  206.  Principal  and  agent. 

§  207.  Directors  of  corporations. 

§  208.  Trusts  that  ai-ise  out  of  inducements  held  out  for  marriage. 

§  209.  Other  fiduciary  relations. 

§  210.  Undefined  fiduciary  and  friendly  relations. 

§  211.  Trusts  arising  from  the  frauds  of  third  persons. 

§  212.  Frauds  upon  third  persons  as  creditors,  etc. 

§  213.  Conveyances  by  man  or  woman  on  the  point  of  marriage. 

§  214.  Illegal  and  immoral  contracts. 

§  215.  Fraud  by  pretending  to  buy  for  another. 

§  216.  Devises  or  conveyances  upon  secret  illegal  trusts. 

§  217.  Purchases  from  trustees  with  knowledge  of  the  trusts. 

§  218.  Purchases  without  notice  of  the  trust. 

§  219.  The  safeguards  thrown  around  such  purchases. 

§  220.  The  consideration  in  such  cases. 

§  221.  The  consideration  must  have  been  actually  paid. 

§  222.  Notice  of  the  trust  —  to  whom  it  may  be. 

§  223.  Notice  maj'  be  actual  or  constructive. 

§  224.  Purchase  of  property  from  executors  or  administrators  —  real  estate. 

§  225.  Personal  property. 

§  226.  Constructive  trusts  may  be  proved  by  parol  —  statute  of  frauds  does  not  apph'. 

§  227.  The  right  to  set  aside  a  conveyance  for  fraud  is  an  equitable  estate  that  may 

be  conveyed  and  devised. 
§§  228-230.   Statute  of  frauds  and  the  time  within  which  steps  must  be  taken  to  avoid 
a  fraudulent  conveyance. 

§  166.  The  trusts  thus  far  considered  arise  from  the  ex- 
press agreements  and  intentions  of  tlie  parties,  or  from  their 
intentions  implied  from  their  agreements,  or  result  from  their 
express  or  implied  agreements.  These  trusts  arise,  result,  or 
are  implied  from  the  contracts  and  relations  of  the  parties. 
The  intention  of  the  parties  as  manifested  in  contracts  made 
in  good  faith  is  the  foundation  of  them.  There  is  another 
large  class  of  trusts  which  arise  from  frauds  committed  by 
one  party  upon  another.  Thus,  if  one  party  procures  the 
legal  title  to  property  from  another  by  fraud  or  misrepresen- 
tation or  concealment,  or  if  a  party  makes  use  of  some  in- 
fluential or  confidential  relation  which  he  holds  towards  the 
owner  of  the  legal  title,  to  obtain  such  legal  title  from  him 
upon  more  advantageous  terms  than  he  could  otherwise  have 
obtained  it,  equity  will  convert  such  party  thus  obtaining 
property  into  a  trustee.  If  a  person  obtains  the  legal  title  to 
property  by  such  arts  or  acts  or  circumstances  of  circumven- 

199 


^  166.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

tion,  imposition,  or  fraud,  or  if  he  obtains  it  by  virtue  of  a 
confidential  relation  and  influence  under  such  circumstances 
that  he  ought  not,  according  to  the  rules  of  equity  and  good 
conscience  as  administered  in  chancery,  to  hold  and  enjoy 
the  beneficial  interest  of  the  property,  courts  of  equity,  in 
order  to  administer  complete  justice  between  the  parties, 
will  raise  a  trust  by  construction  out  of  such  circumstances 
or  relations ;  and  this  trust  they  will  fasten  upon  the  con- 
science of  the  offending  party,  and  will  convert  him  into  a 
trustee  of  the  legal  title,  and  order  him  to  hold  it  or  to 
execute  the  trust  in  such  manner  as  to  protect  the  rights 
of  the  defrauded  party  and  promote  the  safety  and  interests 
of  society .1  Such  trusts  are  called  constructive  trusts.  They 
differ  from  other  trusts  in  that  they  are  not  within  the  in- 
tention or  contemplation  of  the  parties  at  the  time  the  con- 
tract is  made  from  which  they  are  construed  by  the  court, 
but  they  are  thrust  upon  a  party  contrary  to  his  intention 
and  against  his  consent.  The  reason  is  that  courts  of  equity 
have  a  large  jurisdiction  over  all  matters  of  trust  and  confi- 
dence. They  control  and  direct  their  administration,  and  in 
certain  cases  they  annul  and  put  an  end  to  them  by  directing 
the  trustee  to  convey  the  trust  property  to  the  person  bene- 
ficially interested.  They  can  also  remove  the  trustees  and 
appoint  new  ones.  Therefore,  courts  of  equity  by  raising  a 
trust  by  construction  in  cases  of  fraud  can  do  equal  and  com- 
plete justice  between  the  parties.  By  this  fiction  of  a  con- 
structive trust  courts  of  equity  have  great  powers.  They 
can  order  the  constructive  trustee  to  hold  the  legal  title  for 
the  original  owner  upon  just  and  proper  terms.  If  he  has 
paid  any  value  for  the  legal  estate,  they  can  order  the  estate 
to  stand  as  security  for  it ;  they  can  order  accounts  to  be 
taken  and  settled ;  ^  they  can  decree  a  reconveyance  of  the 

1  Thompson  v.  Thompson,  16  Wis.  91;  McLane  v.  Johnson,  43  Yt.  48; 
Pillow  V.  Brown,  26  Ark.  240;  Collins  v.  Collins,  6  Lansing,  3GS;  Hol- 
lingshed  v.  Simms,  51  Cal.  158:  Hendrix  v.  Nunn,  46  Tex.  141;  Kayser  v. 
Maugham,  8  Col.  232 ;  Johnson  v.  Giles,  69  Ga.  652. 

2  Thompson  v.  Thompson,  16  Wis.  91 ;  McLane  v.  Johnson,  43  Vt. 
48;  Collins  v.  Collins,  6  Laus.  (X.  Y.)  3G8. 

200 


CHAP.  VI.]  ■  CONSTRUCTIVE   TRUSTS.  [§  167. 

property,  or  they  can  put  an  end  to  the  trust  by  declaring 
the  conveyances  to  the  constructive  trustee  to  be  null  and 
void,  and  order  that  they  be  surrendered  up  and  cancelled. 
In  all  such  cases  the  relief  is  really  founded  on  fraud  and  not 
on  constructive  trust.  When  it  is  said  that  the  person  who 
fraudulently  receives  or  possesses  himself  of  trust  property, 
or  who  has  defrauded  another  of  his  estate  by  misrepresenta- 
tion, concealment,  or  other  fraudulent  practices,  is  converted 
by  the  court  into  a  trustee  and  ordered  to  account  for  or  re- 
convey  the  property,  the  expression  is  used  for  the  purpose 
of  describing  the  nature  and  extent  of  the  remedy  against 
him,  and  it  denotes  that  the  parties  defrauded  or  beneficially 
entitled  have  the  same  rights  and  remedies  against  him  as 
they  would  be  entitled  to  against  an  express  trustee  who  had 
fraudulently  committed  a  breach  of  the  trust.  Generally 
speaking,  the  constructive  trusts  described  in  this  chapter  are 
not  trusts  at  all  in  the  strict  and  proper  signification  of  the 
word  "  trusts ; "  but  as  courts  are  agreed  in  administering 
the  same  remedy  in  a  certain  class  of  frauds  as  are  adminis- 
tered in  fraudulent  breaches  of  trusts,  and  as  courts  and  the 
profession  have  concurred  in  calling  such  frauds  constructive 
trusts,  there  can  be  no  misapprehension  in  continuing  the 
same  phraseology,  while  a  change  might  lead  to  confusion 
and  misunderstanding.! 

§  167.  Courts  of  common  law  have  an  extensive  jurisdic- 
tion in  cases  of  fraud,  but  it  is  readily  seen  that  the  remedy 
in  equity  is  more  easily  moulded  to  the  varying  circumstances 
of  different  cases.  As  between  the  immediate  parties,  fraud 
makes  all  things  void  which  are  done  under  its  direct  influ- 
ence. Thus,  non  est  factum  can  be  pleaded  to  a  suit  upon  a 
deed  or  bond,  procured  by  fraud  or  duress,  on  the  ground 
that  whatever  is  done  under  the  influence  of  fraud  is  not 
done  at  all.^     The  same  evidence  is  admissible  in  both  courts. 

^  See  Westbury,  Lord  Chancellor,  in  Rolfe  v.  Gregory,  4  De  G.,  J.  & 
S.  679. 

^  1  Chitty,  Plead.  483.  Courts  of  chancery  in  England,  and  the  courts 
of  the  United  States,  and  of  many  of  the  several  States,  have  a  jurisdic- 

201 


§  167.]  CONSTRUCTIVE    TRUSTS.  [CHAP.  VI. 

Probablv  the  same  evidence  that  would  convince  a  court  of 
equit}'  that  a  deed  was  procured  by  fraud,  and  that  the 
grantee  ought  to  hold  as  a  constructive  trustee  for  the 
grantor,  would  also  persuade  a  jury  to  return  a  verdict 
against  such  deed.  In  some  States  the  parties  have  a  right 
to  trial  by  jury  of  all  questions  of  fact,  as  of  fraud  or  no 

tion  in  equity  to  set  aside  deeds  and  contracts  procured  by  misrepresenta- 
tion, concealment,  collusion,  or  fraud.     In  Massachusetts,  the  Supreme 
Judicial  Court  has  jurisdiction  in  equity  in  cases  of  fraud,  accident,  and 
mistake,  according  to  the  usage  and  practice  of  courts  of  equity  where 
there  is  not  a  plain,  adequate,  and  complete  remedy  at  law.     Gen.  Stat, 
ch.  113,  §  2:     Jt  was  supposed  by  the  profession  that  this  statute  con- 
ferred upon  the  court  a  jurisdiction  in  equity  in  accordance  with  the 
general  usages  of  the  courts  of  equity  in  England  and  the  United  States. 
But  the  court  by  a  strict  construction  of  the  words,  "  where  there  is  not 
a  plain,  adequate,  and  complete  remedy  at  law,"  denied  their  jurisdiction 
in  cases  of  fraud,  where  an  action  at  law  might  be  maintained  by  the  in- 
jured party.     Thus,  if  a  deed  is  procured  from  a  person  by  fraud,  he  can- 
not maintain  a  suit  in  equity  to  set  it  aside,  if  it  is  possible  to  maintain  a 
real  action  for  the  recovery  of  the  land  ;  and  as  such  deeds  are  void,  or  at 
least  voidable,  such  action  may  be  maintained  at  law,  and  the  court  has 
no  jurisdiction  in  equity.     Bassett  v.  Brown,  10  Mass.  355.    This  decision 
goes  upon  the  strict  meaning  of  the  words,  "where  there  is  not  a  plain, 
adequate,  and  complete   remedy  at  law,"  words  which  were  formerly 
found  in  every  bill  in  equity,  in  order  to  give  the  court  jurisdiction.     But 
they  did  not  exclude  the  jurisdiction  in  equity,  if  the  court  had  a  jurisdic- 
tion, concurrent  or  otherwise,  according  to  the  usage   and  practice  of 
courts  of  equity.     The  court  in  Massachusetts  still  has  jurisdiction  in 
equity  in  cases  of  fraud,  where  there  is  a  peculiar  complication  of  circum- 
stances or  of  parties.     Pratt  v    Pond,  5  Allen,  59  ;  Glass  i:  Hulbert,  102 
Mass.  26 ;  Martin  v.  Graves,  5  Allen,  601 ;  Whittemore  v.  Cowell,  7  Allen, 
446 ;  Pool  V.  Lloyd,  5  ]Met.  528.     But  the  practitioner  must  determine  at 
his   pei'il  whether  a  particular  case  comes  within  such  jurisdiction.     It 
would  have  been  more  simple  and  certain  for  the  administration  of  justice, 
to  have  given  to  the  words  of  exclusion  the  meaning  attached  to  them  in 
bills  of  equity,  and  to  have  made  the  jurisdiction  of  the  court  to  depend  upon 
the  known  usage  and  practice  of  courts  of  equity.     Thus,  both  the  court 
and  the  bar  would  have  had  some  known  ground  to  go  upon.     Of  course 
these  remarks  apply  only  to  those  cases  of  fraud  where  there  is  a  jurisdic- 
tion in  equity  to  set  aside  conveyances  procured  by  fraud,  and  for  other 
relief  according  to  the  known  usage  and  pi*actice  of  courts  of  equity,  and 
not  to  mere  cases  of  cheating  and  fraud  in  many  of  the  affairs  of  life. 
See  Miller  v.  Scammon,  52  N.  H.  609. 
202 


CHAP.  VI.]  CONSTRUCTIVE  TRUSTS.  [§  168. 

fraud,  arising  upon  the  pleadings  in  equity.  In  other  States, 
the  court  may  in  its  discretion  send  such  issues  of  fact  to 
trial  by  a  jury.^  Thus,  the  remedy  in  equity  in  cases  of 
fraud  is  sought,  not  so  much  from  the  mode  of  proof  and  the 
rules  of  evidence,  as  it  is  from  the  complete  character  of  the 
relief  given.  It  is  true,  that  in  some  cases  courts  of  equity 
will  act  upon  circumstances  and  presumptions  of  fraud  which 
courts  of  law  would  not  deem  satisfactory  proofs.^  As  if  a 
guardian  purchases  an  estate  from  a  ward,  equity  will  pre- 
sume fraud  from  the  existence  of  the  relation  of  guardian 
and  ward,  —  a  rule  that  courts  of  law  would  not  always  act 
upon.  Lord  Eldon  said,  that  courts  of  equity  in  many  cases 
would  order  an  instrument  to  be  delivered  up,  as  unduly 
obtained,  winch  a  jury  would  not  be  justified  in  impeaching 
by  the  rules  of  law.^  However,  fraud  must  be  proved  in  both 
courts,  and  is  not  to  be  imputed  from  mere  circumstances  of 
suspicion.  It  is  not,  however,  the  rule  that  the  court  will  not 
presume  or  construe  a  trust  to  arise  except  in  cases  of  abso- 
lute necessity ;  *  for  courts  of  equity  will  act  upon  the  just 
preponderance  of  all  the  facts  and  circumstances  of  proof  in 
the  case.^ 

§  168.  Constructive  trusts  may  be  divided  into  three  classes, 
to  be  determined  according  to  the  circumstances  under  which 
they  arise.  First,  trusts  that  arise  from  actual  fraud  practised 
by  one  man  upon  another.  Second,  trusts  that  arise  from 
constructive  fraud.^  In  this  second  class  the  conduct  may 
not  be  actually  tainted  with  moral  fraud  or  evil  intention,  but 
it  may  be  contrary  to  some  rule  established  by  public  policy 
for  the  protection  of  society.  Thus,  a  purchase  made  by  a 
guardian  of  his  ward,  or  by  a  trustee  of  his  cestui  que  trust, 
or  by  an  attorney  of  his  client,  may  be  in  good  faith,  and  as 
beneficial  to  all  parties  as  any  other  transaction  in  life ;  and 

1  1  Story's  Eq.  Jur.  §  190  a. 

2  Warner  v.  Daniels,  1  Wood  &  M.  103 ;  Denton  v.  McKenzie,  1  Des.  289. 
8  Fullager  v.  Clark,  18  Ves.  483  ;  Chesterfield  v.  Janssen,  2  Ves.  155. 
*  Cook  V.  Fountain,  3  Swanst.  555. 

6  2  Story's  Eq.  Jur.  §  1195;  Steele  v.  Kiukle,  3  Ala.  352. 
«  Post,  §  194. 

203 


§  1G9.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

yet  the  inconvenience  and  clanger  of  allowing  contracts  to  be 
entered  into  by  parties  holding  such  relations  to  each  other 
are  so  great  that  courts  of  equity  construe  such  contracts 
prima  facie  to  be  fraudulent,  and  they  construe  a  trust  to 
arise  from  them.  Third,  trusts  that  arise  from  some  equita- 
ble principle  independent  of  the  existence  of  any  fraud;  as 
where  an  estate  has  been  purchased,  and  the  consideration 
money  paid,  but  the  deed  is  not  taken,  equity  will  raise  a  trust 
by  construction  for  the  purchaser. 

§  169.  No  certain  and  accurate  definition  or  description 
of  actual  fraud  can  be  given.  Courts  have  never  laid  down, 
in  a  general  proposition,  what  does  and  what  does  not  consti- 
tute fraud,  nor  any  general  rule  by  which  they  are  controlled 
in  giving  relief,^  lest  other  means  of  committing  fraud  should 
be  resorted  to.  As  Lord  Hardwicke  said,  "  fraud  is  infinite, 
and  were  courts  of  equity  once  to  lay  down  rules  how  far 
they  would  go  and  no  further,  in  extending  the  relief  against 
it,  or  to  define  strictly  the  species  or  evidence  of  it,  the  juris- 
diction would  be  cramped,  and  perpetually  eluded  by  new 
schemes  which  the  fertility  of  man's  invention  would  con- 
trive." 2  Although  it  is  difficult  to  give  a  definition  of  it, 
yet  Mr.  Story  said,^  that  "  fraud  in  the  sense  of  a  court  of 
equity  properly  includes  all  acts,  omissions,  and  concealments 
which  involve  a  breach  of  legal  or  equitable  duty,  trust,  or 
confidence,  justly  reposed,  and  are  injurious  to  another,  or  by 
which  an  undue  and  unconscientious  advantage  is  taken  of 
another.*  And  courts  of  equity  will  not  only  interfere,  in 
cases  of  fraud,  to  set  aside  acts  done,  but  they  will  also,  if 
acts  have  by  fraud  been  prevented  from  being  done  by  the 
parties,  interfere  and  treat  the  case  exactly  as  if  the  acts  had 
been  done."  ^ 

1  Mortlock  V.  BuUer,  10  Ves.  306. 

2  Parke's  Hist,  of  Chan.  508 ;  Lawley  v.  Hooper,  3  Atk.  279 ;  1  Domat, 
Civil  Law,  B.  1,  tit.  18,  §  3,  art.  1.  s  1  Story's  Eq.  Jur.  §  187. 

^  Chesterfield  v.  Janssen,  2  Ves.  Sr.  155 ;  Gale  v.  Gale,  19  Barb.  251 ; 

I  Fonb.  Eq.  B.  1,  c.  2,  §  3,  note  (r). 

5  Middleton  v.  Middleton,  1  Jac.  &  W.  96;  Waltham's  Case,  cited 

II  Ves.  638,  14  Ves.  290 ;  Devenish  v.  Baines,  Pr.  Ch.  4. 

20-1 


CHAP.  VI.]  MISREPRESENTATION   AND    FRAUD.  [§  170. 

§  170.  Although  courts  of  equity  have  not  made  general 
definitions  stating  what  is  fraud  and  what  is  not,  they  have 
not  hesitated  to  lay  down  broad  and  comprehensive  principles 
of  remedial  justice,  and  to  apply  these  principles  in  favor  of 
innocent  parties  suffering  from  the  fraud  of  others.  These 
principles,  though  firm  and  inflexible,  are  yet  so  plastic,  that 
they  can  be  applied  to  every  case  of  fraud  as  it  occurs,  however 
new  it  may  be  in  its  circumstances.  The  leading  principle  of 
this  remedial  justice  is  by  way  of  equitable  construction  to 
convert  the  fraudulent  holder  of  property  into  a  trustee,  and 
to  preserve  the  property  itself  as  a  fund  for  the  purpose  of 
recompense.  In  investigating  allegations  of  fraud,  courts  of 
equity  disregard  mere  technicalities  and  artificial  rules,  and 
look  only  at  the  general  characteristics  of  the  case,  and  go  at 
once  to  its  essential  morality  and  merit.  Thus  at  law  mar- 
ried women  or  infants  are  not  liable  upon  their  contracts,  nor 
are  they  bound  by  their  deeds,  receipts,  or  releases,  whether 
made  bona  fide  or  fraudulently ;  ^  but  in  equity  if  a  married 
woman  has  obtained  property  by  fraud,  the  court  disregards 
the  technical  rules  of  common  law  in  regard  to  married  women, 
and  converts  her  by  construction  into  a  trustee,  and  compels 
her  to  do  justice  by  executing  the  trust.^  The  same  principles 
apply  to  infants,  although  they  cannot  be  sued  at  common 
law,  save  in  a  few  exceptionable  cases.  So  if  an  infant  fraudu- 
lently misrepresents  his  age  and  gives  deeds  or  releases,  upon 
which  others  act,  equity  will  not  allow  him  to  impeach  such 
deeds  on  account  of  his  minority.^  This  is  on  the  ground 
that  infants  and  married  women  shall  not  take  advantage  of 
the  rules  made  for  their  protection  to  perpetrate  frauds  upon 
innocent  persons,  but  that  they  shall  be  bound  by  their  own 
fraudulent  representations,  or  by  equitable  estoppels,  like  other 
persons.* 

1  People  V.  Kendall,  25  Wend.  399;  Burley  v.  Russell,  10  N.  H.  184; 
West  V.  Moore,  14  Yt.  447;  Conroe  v.  Birdsall,  1  Johns.  Cas  127;  Price  v. 
Hewitt,  8  Exch.  145. 

2  Vaughan  v.  Vanderslegen,  2  Dr.  36.3  ;  Jones  v.  Kearney,  1  Dr.  &  W.  167. 
8  Stoolfoos  V.  Jenkins,  12  S.  &  R.  399 ;  Wright  v.  Snow,  2  De  G.  &  S.  321. 
4  Davis  V.  Fingle,  8  B.  ]Monr.  539;  Wright  v.  Arnold,  4  B.  Monr.  643; 

Hall  V.  Timmons,  2  Rich.  Eq.  120. 

205 


§  171.]  CONSTEUCTIVE   TRUSTS.  [CHAP.  VI. 

§  171.  Fraud,  arising  from  facts  and  circumstances  of  im- 
position, presents  the  plainest  case  for  relief,^  for  it  comes 
within  what  is  called  the  suggestio  falsi?'  Wherever  by  mis- 
representation, combination,  conspiracy,  oppression,  intimida- 
tion, surprise,  or  any  other  practice  at  variance  with  honest, 
fair  dealing,  one  is  deceived,  entrapped,  or  surprised  into  a 
conveyance  of  the  legal  title  to  his  property,  by  deed  or  by 
will,  courts  of  equity  will  not  allow  the  fraudulent  grantee  to 
avail  himself  of  the  transaction  to  enjoy  the  beneficial  interest, 
but  will  construe  him  to  be  a  trustee,  and  will  order  him 
to  account  upon  equitable  principles,  and  to  make  a  reconvey- 
ance of  the  property.^  Thus,  where  one  buys  land  at  an  exe- 
cution sale,  or  sale  under  a  trust  deed,  under  an  agreement 
with  the  debtor  that  the  latter  may  redeem,  the  purchaser  holds 
in  trust ;  it  would  be  a  fraud  to  allow  him  to  repudiate  the  con- 
tract.*    Mere  declarations  and  admissions  of  the  party  to  be 

1  Chesterfield  r.  Janssen,  2  Ves.  155;  Beagle  v.  Wentz,  55  Pa.  St.  369. 

2  Evans  v.  Bicknell,  6  Ves.  173;  Jarvis  v.  Duke,  1  Vern.  20;  Biod- 
erick  v.  Broderick,  1  P.  Wms.  240 ;  Nevitt  v.  Gibson,  1  Freem.  Ch.  438 ; 
Bulkley  v.  Wilford,  2  CI.  &  Fin.  102. 

3  Tyler  v.  Black,  13  How.  231 ;  Boyce  v.  Grundy,  3  Pet.  210;  Smith  v. 
Richards,  13  Pet.  26  ;  McAllister  v.  Barry,  2  Hayw.  290 ;  Walker  v.  Dun- 
lop,  5  Hayw.  271 ;  Stephenson  v.  Taylor,  1  A.  K.  Marsh.  235,  Pitts  t?. 
Cottingham,  9  Porter,  675 ;  Hai-ris  v.  AVilliamson,  4  Hayw.  124 ;  Lewis  v. 
McLemore,  10  Yerg.  206;  Spence  v.  Duren,  2  Ala.  251 ;  Harris  v  Carter, 
3  Stew.  233  ;  How  v.  Weldon,  2  Ves.  517;  Xeville  v.  Wilkinson,  1  Bro. 
Ch.  596  ;  Earl  of  Bath's  Case,  3  Ch.  Ca.  56 ;  Willan  v.  Willan,  16  Ves.  82  ; 
Say  V.  Barwich,  1  V.  &  B.  195;  Barnsley  v.  Powell,  1  Ves.  289,  Mathew 
V.  Hanbury,  2  Vern.  187 ;  Bridgman  v.  Green,  2  Ves.  627 ;  Evans  v. 
Llewellyn,  1  Cox,  340;  Bennet  v.  Vade,  2  Atk.  324,  Mad.  Ch.  Pr.  342, 
Clermont  v.  Tasburgh,  IJ.  &  W.  112;  Dowd  v.  Tucker,  41  Conn.  198; 
Williams  v.  Vreeland,  29  N.  J.  Eq.  417 ;  Church  v.  Ruland,  64  Pa.  St. 
432;  Beach  v.  Dyer,  93  111.  295;  Long  v.  Fox,  100  111.  43;  Brophy  v. 
Lawler,  107  HI.  284;  Henschel  v.  Mamero,  120  111.  660;  Rick's  App.,  105 
Pa.  St.  528;  Ludlow  v.  Flournoy,  34  Ark.  451.  A  trust  sale  may  be  set 
aside  when  oppressive  to  the  knowledge  of  the  purchaser.  Littell  v. 
Grady,  38  Ark.  584.  But  no  mere  verbal  understanding  between  testator 
and  the  legatee  as  to  the  final  disposition  of  property  bequeathed  will 
create  a  trust.     Allman  v.  Pigg,  82  111.  149. 

4  Mulholland  v.  York,  82  N.  C.  510;  Tankard  v.  Tankard,  84  N.  C. 
286;  McNair  v.  Pope,  100  N.  C.  408.     See  also  Turner  v.  King,  2  Ired. 
Eq.  132;  Vannoy  v.  Martin,  2  Ired.  Eq.  169;  Vestal  v.  Sloan,  76  N.  C. 
206 


CHAP.  VI.]  MISREPRESENTATION    AND    FRAUD.  [§  171. 

charged  accompanying  the  transfer  of  title  have  been  held  suf- 
ficient to  raise  a  trust.^  It  must  be  remembered,  in  connection 
with  these  cases,  that  although  they  are  placed  on  the  ground 
of  fraud,  the  doctrine  of  North  Carolina,  that  trusts  in  land 
may  be  created  by  parol,  probably  has  had  an  influence  in 
nearly  all  the  decisions.^  In  Pennsylvania,  an  agreement  to 
allow  redemption  is  held  to  be  within  the  statute  of  frauds, 
and  will  not  be  enforced  as  creating  a  constructive  trust.^ 
Equity  will  enforce  a  parol  promise  to  a  testator  by  a  legatee 
to  hold  the  legacy  for  the  benefit  partly  or  wholly  of  another, 
in  consideration  of  which  promise  the  testator  for  the  benefit 
of  such  third  person  makes  the  bequest  to  the  promisor.  It 
would  be  a  fraud  for  the  legatee  to  retain  the  property  for  his 
own  benefit.*  Even  silent  acquiescence  encouraging  a  testa- 
tor to  make  a  will  with  a  declared  expectation  that  he  will 
apply  it  for  the  benefit  of  others,  has  been  held  to  have  the 
force  of  an  express  promise.^  A  parol  promise  on  considera- 
tion of  which  a  deed  was  made  will  be  enforced  in  equity.^ 
Where  the  devisee,  under  a  will  defectively  executed,  obtained 
a  conveyance  of  the  estate  from  the  heir-at-law  by  represent- 
ing that  the  will  was  duly  executed,'^  or  where  an  executor 
obtained  a  release  of  a  legacy  by  representing  that  tliere  was 
no  legacy  given  by  the  will,^  or  where  a  purchaser  misrepre- 

127;  McLeod  v.  Bollard,  84  X.  C.  515;  Cheek  v.  Watson,  85  N.  C.  195; 
Gidney  v.  Moore,  86  N.  C.  484.  McKee  v.  Vail,  79  N.  C.  194,  declares 
such  a  contract  void  when  not  in  writing;  but  in  82  N.  C.  510,  supra, 
this  case  was  distinguished  on  the  ground  that  there  was  no  relation  of 
confidence  or  equitable  element  in  the  agreement  in  that  case. 

1  Smiley  v.  Pearce,  98  N.  C.  185. 

2  See  §  75. 

8  Salsbury  v.  Black,  119  Pa.  St.  200;  Kimmel  v.  Smith,  117  Pa.  St.  183, 
and  cases  cited. 

*  Vreeland  v.  Williams,  32  N.  J.  Eq.  734.     See  Socher's  App.,  104 
Pa.  St.  609. 

6  Laytin  v.  Davidson,  95  N.  Y.  263. 

*  Clark  V.  Haney,  62  Tex.  511,  and  cases  cited;  Lott  v.  Kaiser,  61 
Tex.  665. 

7  Broderick  v.  Broderick,  1  P.  Wms.  239. 

8  Jarvis  v.  Duke,  1  Vern.  19 ;  Murray  v.   Palmer,  18  Sch.  &  L.  474  ; 
James  v.  Greaves,  2  P.  Wms.  270;  Ilorseley  v.  Chalouer,  2  Ves.  83. 

207 


§  171.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

sentcd  the  quantity  and  quality  of  the  land  he  was  about  to 
purchase,^  or  where  the  vendor  misrepresented  the  quantity  of 
land  in  a  tract  sold,  as  twenty  acres  overflowed  by  a  river,  when 
in  fact  it  was  more  than  a  hundred  acres,^  or  where  a  husband 
and  wife  conveyed  land  to  A.  on  no  consideration  but  his 
promise  to  reconvey  it  to  the  wife,  and  A.'s  prior  creditors  at- 
tached the  land,^  the  court  gave  relief.  If  one  is  induced  by 
fraud  to  take  in  the  name  of  another  a  conveyance  of  land  he 
buys,  he  may  elect  to  treat  the  transaction  as  creating  a  trust 
for  him  ;  but  if  he  does  not  so  elect,  his  heirs  cannot  do  so, 
for  no  estate  vested  in  him  to  pass  by  descent.^  In  Smith  v. 
Richards,^  the  Supreme  Court  of  the  United  States  cited  the 
following  proposition  ^  with  approval :  "  Where  a  party  inten- 
tionally or  by  design  misrepresents  a  material  fact,  or  produces 
a  false  impression  "^  in  order  to  mislead  another,^  or  to  entrap 
or  cheat  him,  or  to  obtain  an  undue  advantage  of  him,  —  in 
every  such  case  there  is  positive  fraud  in  the  truest  sense  of  the 
term;^  there  is  an  evil  act,  with  an  evil  intent;  dolum  malum, 
ad  circumveniendum.  And  the  misrepresentation  may  as  well 
be  by  acts  as  words,  by  artifices  that  mislead  ^^  as  by  positive 
assertions."  ^^     Lord  Thurlow   said  "  it  would   be   ridiculous 

1  Tyler  v.  Black,  13  How.  231. 

2  Boyce  v.  Grundy,  3  Pet.  210.  See  Prescott  v.  Wright,  4  Gray,  461. 
But  see  Bartlett  v.  Salmon,  6  De  G.,  M.  &  G.  40. 

2  Cox  V.  Arnsmanu,  76  Ind.  210. 
*  Cooper  V.  Cockrum,  87  Ind.  443. 
«  13  Pet.' 36. 

6  1  Story's  Eq.  Jur.  §§  192,  193. 

''  Laidlaw  v.  Organ,  2  Wheat.  195;  Pidcock  v.  Bishop,  3  B.  &  Cr.  605; 
Smith  V.  Bank  of  Scotland,  1  Dow,  72 ;  Evans  v.  Bicknell,  6  Ves.  173. 

8  State  V.  Holloway,  8  Blackf .  45. 

9  Atwood  V.  Small,  G  CI.  &  Fin.  232;  1  Younge,  407;  Taylor  r.  Ashton, 
11  Mee.  &  W.  401;  Warner  v.  Daniel,  1  Wood.  &  M.  103;  Torrey  v. 
Buck,  1  Green,  Ch.  366;  Jarvis  v.  Duke,  1  Vern.  19;  Broderick  v. 
Broderick,  1  P.  Wms.  289. 

1°  Chisholm  v.  Gadsden,  1  Strobh.  220;  Huguenin  v.  Baseley,  14  Ves. 
273 ;  State  v.  Holloway,  8  Blackf.  45. 

"  Ibid.;  Laidlaw  v.  Organ,  2  Wheat.  195;  Smith  v.  Bank  of  Scotland, 
1  Dow,  272;  2  Kent,  484  ;  Chesterfield  v.  Janssen,  2  Ves.  155;  Neville  v. 
Wilkinson,  1  Bro.  Ch.  546. 
208 


CHAP.  VI.]  MISREPRESENTATION    AND    FRAUD.  [§  171. 

for  the  court  to  make  a  distinction  between  the  two  cases."  ^ 
"  Whether  the  party  thus  representing  a  fact  knew  it  to  be 
false  or  made  the  assertion  without  knowing  whether  it  was 
true  or  false  is  wholly  immaterial ;  ^  for  the  affirmation  of 
what  one  does  not  know  or  believe  to  be  true  is,  equally  in 
morals  and  law,  as  unjustifiable  as  the  affirmation  of  what  is 
known  to  be  positively  false.^  And  even  if  a  party  innocently 
misrepresent  a  fact  by  mistake,  it  is  equally  conclusive  ;  for 
it  operates  as  a  surprise  and  imposition  on  the  other  party.* 
Or,  as  Lord  Thurlow  expresses  it,  it  misleads  the  parties  con- 
tracting on  the  subject-matter."  ^  There  may  also  be  fraud 
upon  a  third  person  not  a  party  to  the  immediate  conveyance 
that  will  raise  a  trust ;  for  example,  a  purchaser  knowing  of  a 
prior  deed  to  A.  holds  in  trust  for  A.^  There  is  a  distinction 
between  cases  of  fraud  in  which  equity  will  set  aside  the  sale 
altogether,  and  those  cases  in  which  it  will  allow  the  sale  to 
stand,  and  hold  the  purchaser  as  a  trustee,  A  trust  will  not 
be  declared,  if  thereby  in  effect  the  beneficiary  would  receive 
the  benefit  of  the  fraud  at  the  expense  of  a  third  person 
equally  innocent.'' 

1  Neville  v.  Wilkinson,  1  Bro.  Ch.  546. 

2  Wright  V.  Suow,  2  De  G.  &  Sm.  321. 

*  Ainslie  v.  Medlycott,  9  Ves.  21;  Graves  v.  White,  Freem.  57;  Pear- 
son V.  Morgan,  2  Bro.  Ch.  389;  Foster  v.  Charles,  6  Bing.  396;  7  Bing. 
105;  Taylor  v.  Ashton,  11  Mee.  &  W.  401;  Smith  v.  Mitchell,  6  Ga.  458; 
Hazard  v.  Irwin,  18  Pick.  85;  Doggett  v.  Emerson,  3  Story,  733;  Hough 
IK  Richardson,  lb.  691;  Mason  v.  Crosby,  1  Wood.  &  M.  352;  Smith  v. 
Babcock,  2  AVood.  &  M.  246  ;  Hammatt  v.  Emerson,  27  Me.  308. 

*  Ibid.;  Pearson  v.  Morgan,  2  Bro.  Ch.  389;  Burrows  v.  Locke,  10 
Ves.  475 ;  De  Manville  v.  Compton,  1  Ves.  &  B.  355 ;  Ex  parte  Carr,  3 
Ves.  &  B.  Ill;  Carpenter  v.  Am.  Ins.  Co.,  1  Story,  57;  Tayman  v. 
Mitchell,  1  Md.  Ch.  Dec.  496;  Pratt  v.  Philbrook,  33  Me.  17;  Harding  v. 
Randall,  15  Me.  332;  Rosevelt  v.  Fulton,  2  Cow.  129;  Champlin  v.  Lay- 
tin,  6  Paige,  189;  Reese  v.  Wyman,  9  Ga.  439;  Reynell  v.  Sprye,  8  Hare, 
222;  Lewis  v.  McLemore,  11  Yerg.  206  ;  Thomas  v.  McCann,  4  B.  Mon. 
601;  Hunt  v.  Moore,  2  Barr,  105;  Joice  v.  Taylor,  6  G.  &  J.  54; 
Lockridge  v.  Foster,  4  Scam.  570;  Turnbull  v.  Gadsden,  2  Strobh. 
Eq.  14. 

6  Neville  r.  Wilkinson,  1  Bro.  Ch.  546. 
8  Cannon  v.  Ilandley,  72  Cal.  133;  see  §  212. 
■^  Hudson  V.  Morris,  55  Tex.  605. 
VOL.  I.  — 14  209 


§  172.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

§  172.  If  a  person  purchasing  an  estate  falsely  pretends 
and  represents  that  he  is  purchasing  or  acting  as  agent  for 
another,  when  in  fact  he  is  purchasing  for  himself,  and  such 
misrepresentation  misleads  and  throws  the  vendor  off  his 
guard,  and  the  purchaser  makes  a  better  bargain  than  he 
otherwise  could,  or  the  representation  is  in  any  way  material, 
equity  will  not  enforce  the  agreement,  or,  if  it  is  already  exe- 
cuted, will  convert  the  purchaser  into  a  trustee.^  And  so  if 
a  purchaser  at  auction  or  otherwise  represents  that  he  is  pur- 
chasing or  bidding  for  some  other  person,  as  for  the  debtor  in 
a  sale  under  an  execution,^  or  for  the  mortgagor  in  a  sale 
under  a  foreclosure,  or  for  the  family  under  an  executor's  or 
administrator's  sale,  and  competition  is  thus  prevented  and 
the  purchase  is  made  on  his  own  terms,  equity  will  decree 
that  such  person  shall  be  a  trustee  for  the  person  for  whom 
he  represented  that  he  was  acting.  So  if  a  purchaser  by 
fraud  prevents  other  purchasers  from  attending  a  sale,^  or  if 
a  purchaser  fraudulently  agrees  that  he  will  purchase  an 
estate  in  his  own  behalf  and  that  of  another,  in  order  to  pre- 
vent competition,  and  gets  the  property  into  his  own  name,  at 
a  less  price,  he  will  be  a  trustee  for  the  person  defrauded.^ 
On  the  other  hand,  where  an  agent  makes  a  fraudulent  rep- 
resentation, or  does  a  fraudulent  act,  in  a  purchase  or  sale, 
with  or  without  the  privity  or  knowledge  or  consent  of  his 
principal,  and  the  principal  adopts  the  bargain  and  attempts 
to  reap  an  advantage  from  it  so  tainted  by  the  fraud  of  tlie 
agent,  he  will  be  held  bound  by  the  fraud  of  the  agent,  and 

1  Phillips  V.  Bucks,  1  Vern.  227  and  notes ;  Fellowes  v.  Gwydyr,  1 
Sim.  63;  1  R.  &  M.  83.  But  a  mere  mistake  of  parties  will  not  avoid  a 
lease.     Stiner  v.  Stiner,  58  Barb.  643. 

2  Peebles  v.  Reading,  8  Ser.  &  R.  484;  Gilraore  v.  Johnson,  29  Ga.  67; 
Belcher  v.  Saunders,  34  Ala.  9 ;  Roller  v.  Spilmore,  13  Wis.  26 ;  Arnold 
V.  Cord,  16  lud.  176 ;  Northcote  v.  Martin,  28  Miss.  469 ;  Soggins  v. 
Heard,  31  Miss.  426 ;  Pearson  v.  East,  36  Md.  28 ;  Minot  v.  Mitchell,  30 
Ind.  228. 

8  Martin  v.  Blight,  4  J.  J.  Marsh.  491 ;  Rives  v.  Lawrence,  4  Ga.  283. 
Beegle  v.  Wentz,  55  Pa.  St.  369;  Boynton  v.  Housler,  73  Pa.  St.  453; 
Wolford  V.  Herrington,  74  Pa.  St.  311. 

*  McCulloch  V.  Cowher,  5  AVatts  &  S.  427 :  Ferguson  v.  Williamson, 
20  Ark.  272 ;  Owson  v.  Cown,  22  Miss.  329. 
210 


CHAP.  VI.]  MISREPRESENTATION   AND    FRAUD.  [§  173. 

relief  will  be  given.i  Indeed,  the  doctrine  has  been  thus 
broadly  stated :  "  That  where  once  a  fraud  has  been  com- 
mitted, not  only  is  the  person  who  committed  the  fraud  pre- 
cluded from  deriving  any  benefit  from  it,  but  every  innocent 
person  is  so  likewise,  unless  he  has  innocently  acquired  a  sub- 
sequent interest ;  for  a  third  person,  by  seeking  to  derive  any 
benefit  under  such  a  transaction,  or  to  retain  any  benefit 
resulting  therefrom,  becomes  partieeps  criminis,  however  in- 
nocent of  the  fraud  in  the  beginning."  ^  And  the  same  rule 
applies  with  more  force  to  misrepresentations  made  by  one  of 
several  partners.^  But  if  the  agreement  is  a  fair  one  between 
the  parties,  it  will  not  be  affected  because  brought  about  by 
the  fraud  of  some  third  person  for  his  collateral  benefit.*  And 
if  the  agreement  is  not  a  fair  one,  it  will  not  be  invalidated  by 
the  fraudulent  representations  of  a  third  person  in  no  way 
connected  with  either  party,^  unless  the  circumstances  are 
such  that  the  bargain  may  be  said  to  have  been  entered  into 
by  mistake.'' 

§  173.  However  repugnant  to  entire  good  faith  and  sound 
morals  any  misrepresentation  upon  any  subject,  however 
made,  may  be,  courts  of  justice  cannot  undertake  to  sit  as 
censors  upon  mere  morals.     There  are  in  every  community 

1  Ferson  v.  Sanger,  1  Wood.  &  M.  147 ;  Warner  v.  Daniels,  1  Wood. 
&  M.  90;  Kibbe  c  Hamilton  Ins.  Co.,  11  Gray,  163;  Brooke  v.  Berry,  2 
Gill,  83;  Fitzsimmons  ?'.  Joslin,  21  Vt.  129;  Fuller  v.  Wilson,  3  Ad.  & 
El.  (n.  s.)  58.  See  also  Comfoot  v.  Fowke,  6  Mee.  &  W.  358;  National 
Exchange  Co.  v.  Drew,  2  Macqu.  103;  Sugd.  144,  V.  &  P.  718;  Gentry  v. 
Law,  4  Nev.  97. 

2  Hortopp  V.  Hortopp,  21  Beav.  259 ;  Scholefield  v.  Templar,  John. 
1.55 ;  Cassard  v.  Hinman,  6  Bosw.  9 ;  Wilde  v.  Gibson,  1  H.  L.  Ca.  605 
Elwell  V.  Chamberlain,  31  N.  Y.  619;  Bennett  v.  Judson,  21  N.  Y.  238 
Buford  V.  Caldwell,  3  Mo.  477;  Thomas  v.  McCann,  4  B.  Mon.  601 
Perham  v.  Randolph,  4  How.  (Miss.)  435;  Stone  v.  Denny,  4  Met.  161 
Gentry  v.  Law,  4  Nev.  97. 

8  Blair  v.  Bromley,  2  Phill.  239,  354. 

*  Bellamy  v.  Sabine,  2  Phill.  425;  Blackie  v.  Clarke,  15  Beav.  595. 
6  Fisher  v.  Boody,  1  Curtis,  206;  Beach  v.  Dyer,  93  111.  295. 
'  Ibid.     And  it  must  be  a  fraud  at  the  time  of  the  purchase,   not 
afterwards.     Wheeler  v.  Reynolds,  67  N.  Y.  227. 

211 


§  173.]  CONSTRUCTIVE   TRUSTS.  [CHAP,  VI. 

two  classes  of  rights, — perfect  rights,  and  imperfect  rights. 
Perfect  rights  are  those  that  may  be  enforced,  or  for  the 
breach  of  which  damages  may  be  recovered ;  imperfect  rights 
are  those  which  are  conceded  to  every  man,  but  which  cannot 
be  enforced  by  human  tribunals,  and  for  the  breach  of  which 
no  damages  can  be  recovered.  Thus  every  man  has  a  right 
to  the  utmost  good  faith,  and  the  most  perfect  frankness  and 
truthfulness  in  all  the  transactions  of  business ;  but  courts  of 
justice  would  be  utterly  powerless  to  enforce  such  a  standard 
of  morality.  They  would  have  neither  the  time  nor  the  means 
of  investigating  the  innumerable  arts  of  buyers  and  sellers. 
And  so  courts  have  been  obliged  to  lay  down  certain  practical 
rules  and  limitations  upon  the  subject  of  misrepresentation. 
Thus  the  misrepresentation  must  generally  be  of  facts,  or 
matters  of  fact,  and  not  of  mere  matters  of  expectation  or 
opinion,!  ^g  if  one  should  represent  that  an  estate  contained 
a  valuable  mine,  when  in  fact  no  mine  existed,^  or  that  an 
estate  contained  only  two  or  three  hundred  acres,  when  in 
fact  it  contained  over  twelve  hundred  acres,  or  that  there  was 
no  timber  upon  it,  when  there  was  a  large  amount  of  valuable 
timber,^  or  the  seller  should  falsely  represent  that  the  custom 
of  a  public-house  was  a  certain  sum  monthly,*  or  that  an 
estate  was  situate  in  one  locality  or  county,  when  it  was  situate 
in  another,^  or  that  stocks  were  selling  for  such  a  sum  in  the 
market,  when  they  were  worthless,^  or  that  a  third  person  has 
paid  a  certain  sum  for  the  same  property,^  or  that  it  rents  for 
so  much.^  In  these  and  similar  cases  the  misrepresentation 
is  of  facts  that  go  to  the  merits  of  the  contract,  and  avoid  it, 
if  false.     But  if  the  representation  is  to  the  value,  wliich  is 

^  Person  r.  Sanger,  1  Wood.  &  M.  146;  Warner  v.  Daniels,  Id.  98; 
Rush  V.  Vought,  55  Pa.  St.  437. 

2  Lowndes  v.  Lane,  2  Cox,  363. 

8  Tyler  v.  Black,  13  How.  230. 

4  Pilmore  v.  Hood,  6  Scott,  827. 

6  Best  V.  Stow,  2  Sandf.  Ch.  298;  Bennett  v.  Judson,  21  N.  Y.  238. 

^  Manning  v.  Albee,  11  Allen,  522.     See  Warner  v.  Daniels,  1  Wood. 
&  M.  102. 

■^  Medbury  v.  Watson,  6  Met.  259. 

8  Elkins  V.  Tresham,  1  Sev.  102;  1  Sid.  146. 
212. 


CHAP.  VI.]  MISREPRESENTATIONS.  [§  174. 

matter  of  opinion,  it  will  not  in  general  avoid  the  contract,  as 
where  the  affirmation  is  that  the  estate  is  worth  so  much ;  or 
even  if  the  representation  is  stronger,  as  that  so  much  was 
given  for  it,  or  that  so  much  has  been  offered  or  refused.^ 
Any  person  who  confides  in  or  is  cheated  by  such  representa- 
tions is  considered  too  careless  of  his  own  interests  to  invoke 
the  interposition  of  courts.^  A  misrepresentation,  however, 
of  a  mere  matter  of  opinion  may  avoid  a  contract,  or  convert 
the  fraudulent  party  into  a  trustee,  where  the  other  party  is 
known  to  place  confidence  in  the  opinions  and  judgment  of 
the  person  with  whom  he  is  dealing,  or  where  the  relations 
between  the  parties  are  of  a  confidential  and  fiduciary  char- 
acter, or  where  one  party  has  peculiar  or  exclusive  means  of 
acquiring  proper  information  upon  which  to  form  a  judgment 
or  opinion,^  or  where  the  representations  are  such  that  one 
party  is  induced  to  rely  upon  the  opinions  of  the  other.* 

§  174.  Again,  the  misrepresentation  must  be  of  some  fact 
material  to  the  contract,  or  of  something  that  goes  to  its 
essence;^  as  if  an  estate  is  represented  to  contain  one  thou- 
sand acres,  and  it  contains  nine  hundred  and  ninety-nine 
acres,^  or  if  the  age  of  an  article  is  represented  to  be  ten  years, 
and  it  is  a  few  months  more  or  less,^  or  a  thing  is  represented 

1  Hepburn  v.  Dunlop,  1  Wheat.  189;  Irvine  v.  Kirkpatrick,  3  Eng.  L. 
&  Eq.  17;  Medbury  v.  Watson,  6  Met.  259;  Bacon  v.  Bronson,  7  John. 
Ch.  144;  Stone  v.  Denny,  4  Met.  151 ;  Small  v.  Atwood,  3  Younge,  Exch. 
407;  Veasey  r.  Doton,  3  Allen,  351;  Hemmer  v.  Cooper,  8  Allen,  334; 
Best  V.  Blackburn,  6  Litt.  51 ;  Speiglemyer  v.  Crawfort,  6  Paige,  254. 

2  Manning  v.  Albee,  11  Allen,  522;  2  Kent,  484,  485;  Vernon  v.  Keys, 
12  East,  632;  Hough  v.  Richardson,  3  Story,  696;  Jenkins  v.  Eldredge,  3 
Story,  181. 

8  Sheoffer  v.  Sleade,  7  Blackf .  178  ;  Hill  v.  Gray,  1  Starkie,  352 ; 
Keates  v.  Cadogan,  2  Eng.  L.  &  Eq.  321. 

*  Reynell  v.  Sprye,  8  Hare,  222;  1  De  G.,  M.  &  G.  660. 

8  Phillips  V.  Bucks,  1  Vern.  227  ;  Hough  v.  Richardson,  3  Story,  659; 
TurnbuU  v.  Gadsden,  2  Strobh.  Eq.  14  ;  Morris  Canal  v.  Emmett,  9  Paige, 
186 ;  Clark  v.  Everhart,  63  Pa.  St.  347. 

^  Ibid.;  Stebbins  v.  Eddy,  4  Mason,  414;  Winston  v.  Gwathmey,  8  B. 
Mon.  19;  Winch  r.  Winchester,  1  Ves.  &  B.  375;  Ingpont  v.  Worcup, 
Finch,  310. 

''  Geddes  v.  Pennington,  5  Dow,  159. 

213 


§  175.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

to  have  been  purchased  in  one  place  and  it  is  in  fact  purchased 
at  another,!  or  if  a  spring  of  water  is  represented  to  be  upon 
a  given  tract  of  land,  when  in  fact  it  is  not :  ^  in  all  these 
matters  the  facts  represented  are  too  trifling  or  collateral  to 
be  material,  and  no  relief  would  be  granted.  Yet,  if  the 
leading  motive  of  the  purchase  of  an  estate  was  known  to  be 
material,  relief  would  be  granted.  As,  if  the  leading  motive 
of  the  purchase  of  an  estate  was  known  to  be  the  purpose 
of  acquiring  a  spring  of  water,  then  a  fraudulent  misrep- 
resentation as  to  the  locality  of  the  spring  would  become 
material  to  the  contract ;  or  if  the  vendor  should  fraudulently 
point  out  the  boundary  lines,  so  as  to  take  in  the  spring, 
or  more  land  than  belonged  to  him,  the  contract  would  be 
avoided.^  But  if  the  boundaries  are  properly  pointed  out,  a 
misrepresentation  as  to  the  number  of  acres  in  a  farm  is  not 
material.* 

§  175.  The  misrepresentation  must  also  be  of  something 
peculiarly  within  the  knowledge  of  one  of  the  parties,  or  the 
facts  must  be  of  such  a  nature  that  both  parties  cannot  easily 
obtain  the  information.  Thus,  if  both  parties  have  the  same 
means  of  information,  as  if  both  parties  go  upon  a  tract  of 
land  and  have  equal  means  of  judging  of  the  quantity  of  tim- 
ber upon  it,^  or  if  representations  are  made  of  town  lots  and 
the  future  prospects  of  the  town,  and  the  facts  are  equally 
open  to  both  parties  upon  inquiry,^  or  if  there  is  a  misrepresen- 
tation of  title,  and  the  facts  are  equally  accessible  to  both 
parties,"  or  generally,  if  both  parties  have  the  same  informa- 
tion, or  an  equal  opportunity  to  obtain  the  same  information, 
there  cannot  be  such  a  fraud,  arising  from  such  a  misrepre- 

^  Geddes  v.  Pennington,  5  Dow,  159. 

2  Winston  v.  Gwathmey,  8  B.  Men.  19. 

3  Elliott  V.  Boaz,  9  Ala.  772. 

*  Stebbins  v.  Eddy,  4  Mason,  414;  Morris  Canal  v.  Emmett,  9  Paige, 
168. 

5  Hough  i;.  Richardson,  3  Story,  659;  Tindall  v.  Harkinson,  19  Ga. 
448. 

6  Bell  V.  Henderson,  6  How.  (Miss.)  311. 

'  Glasscock  v.  Minor,  11  Mo.  655;  Juzan  v.  Toulmin,  9  Ala.  662. 

214 


CHAP.  VI.]  MISREPRESENTATIONS.  [§  176. 

sentation  as  will  convert  one  of  the  parties  into  a  trustee.^ 
So  if  there  are  fraudulent  misrepresentations  sufficient  to 
avoid  the  contract,  and  the  innocent  party  obtains  a  knowl- 
edge of  all  the  facts  before  completing  the  contract,  he  can 
have  no  relief.^  And  so  if  the  misrepresentations,  though 
fraudulent,  are  so  vague  and  uncertain  that  they  ought  not  to 
mislead  a  reasonable  man,  but  should  rather  put  him  upon 
inquiry,  he  can  have  no  relief.^ 

§  176.  The  action  of  courts  in  cases  of  alleged  fraud  will 
frequently  depend  upon  the  form  in  which  the  matter  is 
brought  before  them,  and  upon  the  relief  sought  in  the  pro- 
ceedings. Thus  a  bill  may  be  brought  by  a  party  for  the 
specific  performance  of  a  contract  which  he  holds,  or  a  bill 
may  be  brought  by  a  party  to  set  aside  the  contract,  or  con- 
vert the  opposite  party  who  holds  under  the  contract  into  a 
trustee,  or  a  suit  may  be  brought  by  a  party  at  common  law 
to  recover  damages  for  the  breach  of  the  same  contract.  It 
does  not  follow,  because  a  court  of  equity  would  refuse  to 
decree  the  specific  performance  of  a  contract,  that  it  would 
also,  on  a  proper  bill,  decree  the  contract  to  be  set  aside,  or 
that  it  would  order  the  party  claiming  under  it  to  be  a  trustee 
for  the  other  party.*  And  so  if  a  party  comes  into  a  court 
of  equity  to  ask  that  an  agreement  which  he  holds  may  be 
specifically  performed  by  the  opposite  party,  he  must  come 
with  clean  hands,  as  it  is  said.  There  must  not  be  any  fraud, 
misrepresentation,  or  concealment  on  his  part  in  procuring 
the  contract ;  or,  still  stronger,  there  must  not  be  a  suspicion 
of  concealment,  misrepresentation,  fraud,  or  unfairness  adher- 
ing to  him.  And  even  further,  if  the  bargain  imposes  great 
hardship  on  the  defendant,  or  is  made  under  any  misap- 
prehension or  mistake,  or  unadvisedly,  courts  of  equity  will 
decline  to  interfere  actively  in  decreeing  a  specific  execution 

1  Hobbs  V.  Parker,  31  Me.  143;  Hutchinson  v.  Brown,  1  Clark,  408. 

2  Yeates  v.  Trior,  6  Eng.  68 ;  Kiiuckolls  v.  Lea,  10  Humph.  577 ; 
Pratt  V.  Philbrook,  33  Me.  17. 

3  Hough  V.  Richardson,  3  Story,  659. 
*  1  Story's  Eq.  Jur.  §  693. 

215 


§  177.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VL 

of  the  agreement,  but  will  leave  the  parties  to  their  rights  at 
law.i  It  will  be  seen  from  this  that  it  requires  much  less 
evidence  of  fraud  to  enable  a  defendant  to  resist  the  specific 
performance  of  an  agreement,  than  it  requires  to  enable  him 
to  succeed  as  a  plaintiff  in  a  bill  to  set  aside  the  same  con- 
tract.2  In  the  case  last  named  he  must  establish  the  fraud 
affirmatively,  by  proof  of  the  facts  and  circumstances,  to  the 
reasonable  satisfaction  of  the  court.  And  there  may  be  such 
a  case  that  the  court  would  refuse  to  set  aside  a  contract  on 
the  one  side,  because  the  evidence  of  fraud  was  insufficient 
to  set  the  court  in  motion ;  and  on  the  other  side  it  would 
refuse  to  decree  a  specific  performance,  because  the  circum- 
stances were  too  suspicious  to  allow  it  actively  to  inter- 
fere for  the  other  party.  In  such  case  the  parties  would 
be  left  to  an  action  at  common  law  upon  the  agreements 
with  such  rights  as  they  may  have  in  a  common-law  suit.^ 

§  177.  The  rules  that  apply  to  affirmative  acts  or  represen- 
tations which  mislead,  deceive,  and  defraud,  are  of  compara- 
tively easy  application  in  most  cases.  A  single  affirmative 
word  upon  a  material  matter  tending  to  mislead,  and  actually 
misleading,  is  enough  to  establish  fraud.*  It  is  the  suggestio 
fold  which  may  be  defined  to  be  a  false  affirmation,  in  what- 
ever form  it  may  be  made,  whether  by  words  or  acts,  of  a 
material  fact,  rightfully  acted  upon  by  the  other  party  :  such 
an  affirmation  avoids  the  contract  or  converts  the  offending 
party  into  a  trustee  for  the  person  defrauded.  But  how  far 
a  contracting  party  may  legally  conceal  facts  known  to  him, 
affecting  the  value  of  the  subject-matter  of  the  agreement,  is 
another  and  more  difficult  question.  There  is  no  doubt  in 
sound  morals  upon  the  matter.    The  natural  instincts  of  every 

^  Savage  v.  Brocksopp,  18  Ves.  335;  Cadman  v.  Horner,  Id.  12;  Cler- 
mont  V.  Tasburg,  1  Jac.  &  W.  112;  Wall  v.  Stubbs,  1  Madd.  80;  Mort- 
lock  V.  Buller,  10  Ves.  292. 

2  Ibid. ;  Townshend  v.  Stangroom,  6  Ves.  328  n.;  Lowndes  v.  Lane,  2 
Cox,  363. 

3  1  Story's  Eq.  Jur.  §  693. 

*  Turner  v.  Harvey,  1  Jac.  169. 

216 


CHAP.  VI.]  CONCEALMENT.  [§  178. 

right-minded  man  concur  with  every  writer  on  morals  in  con- 
demning every  conceahnent  that  suffers  another  to  contract 
in  ignorance  of  the  facts  that  give  value  to  his  property .^ 
The  common  law  teaches  as  high  a  standard  of  morals  as  any 
other  system  of  law.  The  decisions  of  judges  and  the  books 
of  elementary  writers  contain  the  highest  and  purest  maxims 
of  good  faith  and  sound  morality  in  every  transaction  and 
relation  of  life.  Whenever,  therefore,  a  question  of  conceal- 
ment arises,  either  in  a  suit  at  common  law  or  in  equity,  it 
cannot  be  a  question  what  the  highest  morality  requires ;  but 
it  is  a  question  how  far  courts  can  go  practically  in  giving 
relief,  without  rendering  the  contracts  of  men  so  uncertain 
that  no  business  could  be  transacted  without  danger  of  pro- 
longed litigation.  In  communities  governed  by  known,  fixed, 
and  practical  rules,  and  not  by  the  mere  discretion  of  men  or 
judges,  it  sometimes  happens  that  courts  must  decline  to  give 
relief  in  cases  where  a  man  of  pure  principles  and  delicate 
honor  would  scorn  to  obtain  or  hold  an  advantage.  Thus,  in 
all  cases  of  suggestio  falsi,  where  active  steps  have  been  taken 
to  deceive  and  gain  an  advantage,  courts  have  little  trouble 
in  giving  relief ;  but  where  an  advantage  has  been  gained  by 
concealment,  or  supjjressio  veri  as  it  is  called,  or  by  mere 
silence,  it  is  more  difficult  to  lay  down  fixed  rules  that 
may  not  do  more  harm  than  good  to  business  and  society. 
However,  concealment,  or  suppressio  veri,  is  often  of  that 
fraudulent  character  that  avoids  a  contract  or  converts  the 
offending  party  into  a  trustee. 

§  178.  There  may  be  such  relations  between  the  parties 
that  silence,  or  the  non-disclosure  of  a  material  fact,  will  be  a 
fraudulent  conceahnent.  If  a  person  standing  in  a  special 
relation  of  trust  and  confidence  to  another  has  information 
concerning  property,  and  contracts  with  the  other,  and  does 
not  disclose  his  exclusive  knowledge,  the  contract  may  be 
avoided,  or  he  may  be  held  as  a  constructive  trustee.^     Thus, 

1  Cic.  de  Off.  Lib.  3,  c.  12,  13;  Paley,  Mor.  Phi.  B.  3,  c.  7;  Grotius, 
B.  2,  c.  12,  §  9;  Puff.  De  Jure  Nat.  B.  5,  c.  3,  §  4. 

2  Pidcock  V.  Bishop,  3  B.  &  Cr.  605;  Martin  v.  Morgan,  1  Brod.  &  Biug. 

217 


§  178.]  CONSTRUCTIVE  TRUSTS.  [CHAP.  VI. 

if  an  attorney  contracts  with  his  client  without  disclosing  to 
him  material  facts  in  his  possession,  the  contract  would  be 
void.  The  trust  and  confidence  of  the  client  in  his  attorney 
is  such  that  an  obligation  is  imposed  upon  the  attorney  to 
communicate  every  material  circumstance  of  law  or  fact. 
Mere  silence,  under  such  circumstances,  becomes  fraudulent 
concealment.^  The  same  rule  applies  to  all  contracts  of  an 
agent  Avith  his  principal,  principal  with  his  surety,  landlord 
with  his  tenant,  parent  with  his  child,  guardian  with  his 
ward,  ancestor  with  the  heir,  husband  with  his  wife,  trustee 
with  his  cestui  que  trust,  executors  or  administrators  with 
creditors,  legatees,  or  distributees  of  the  estate,  partners  with 
their  copartners,  appointors  with  their  appointees,  and  part- 
owners  with  part-owners ;  ^  though  the  part-owners  of  a 
ship,  holding  by  several  and  independent  titles,  were  held 
not  to  stand  in  such  confidential  relations  to  each  other  that 
one  was  under  obligation  to  communicate  material  facts 
upon  a  negotiation  to  purchase.^  If  any  of  the  parties  above 
named  propose  to  contract  with  the  persons  with  whom  they 
stand  in  such  relations  of  trust  and  confidence,  they  must 
use  the  utmost  good  faith.  It  is  not  enough  that  they  do 
not  affirmatively  misrepresent:  they  must  not  conceal;  they 
must  speak,  and  speak  fully  to  every  material  fact  known  to 
them,  or  the  contract  will  not  be  allowed  to  stand.*  Thus,  if 
a  partner  who  keeps  the  accounts  of  the  firm  should  purchase 

289;  Squire  v.  Whitton,  1  II.  L.  Ca.  333;  Owen  v.  Homan,  3  Eng.  L.  & 
Eq.  121 ;  5  Mac.  &  Gor.  378;  Etting  v.  Bank  of  U.  S.,  11  Wheat.  .59 ;  Carew's 
Case,  7  De  G.,  M.  &  G.  43;  Smith  v.  Bank  of  Scotland,  1  Dow,  P.  Ca. 
292;  Clark  v.  Everhart,  63  Pa.  St.  347;  Miller  ;;.  Welles,  23  Conn.  33. 

1  Bulkley  v.  Wilford,  2  Clark  &  Fin.  102. 

2  Beaumont  v.  Boultbee,  5  Ves.  485;  Ormond  v.  Hutchinson,  13  Ves. 
51;  Gartside  *•.  Isherwood,  1  Bro.  Ch.  App.  558;  Wellford  v.  Chancellor, 
5  Grat.  39. 

8  Mathews  v.  Bliss,  22  Pick.  48. 

*  Maddeford  v.  Austwick,  1  Sim.  89 ;  2  M.  &  K.  279 ;  Popham  v.  Brooke, 
5  Russ.  8;  Gordon  v.  Gordon,  3  Swanst.  470;  Cocking  v.  Pratt,  1  Ves.  401 ; 
Higgins  r.  Joyce,  2  Jones  &  La.  328;  Farnham  v.  Brooks,  9  Pick.  234; 
Ogden  V.  Astor,  4  Sandf.  S.  C.  312;  Ormond  v.  Hutchinson,  13  Ves.  51; 
Beaumont  v.  Boultbee,  5  Ves.  485:  Gartside  v.  Isherwood,  1  Bro.  Ch.  App. 
558. 

218 


CHAP.  VI.]  CONCEALMENT.  [§  179. 

his  copartner's  interest,  without  disclosing  the  state  of  the 
accounts,  the  agreement  could  not  stand. ^  The  same  rule 
applies  to  family  relations  in  general ;  as,  where  a  younger 
brother  disputed  the  legitimacy  of  his  elder  brother,  and  a 
settlement  and  partition  were  entered  into,  the  younger 
brother  having  in  his  possession  facts  that  tended  to  show 
that  his  parents  intermarried  before  the  birth  of  the  elder, 
which  facts  he  did  not  communicate,  the  settlement  was  set 
aside.2  The  duty  of  disclosing  facts  arises  either  from  a 
fiduciary  relation,  or  from  a  trust  properly  understood  to  be 
reposed  in  one  party  by  another  about  a  matter  concerning 
which  the  latter  has  peculiar  means  of  information.^ 

§  179.  There  are,  also,  cases  where  a  party  must  not  be 
silent  upon  a  material  fact  within  his  knowledge,  although  he 
stands  in  no  relation  of  trust  and  confidence.  Thus,  if  a 
party  taking  a  guaranty  from  a  surety  does  not  disclose  facts 
within  his  knowledge  that  enhance  the  risk,  and  suffers  the 
surety  to  bind  himself  in  ignorance  of  the  increased  risk,* 
or  if  a  party  already  defrauded  by  his  clerk  should  receive 
security  from  a  third  person  for  such  clerk's  fidelity,  without 
communicating  the  fact  of  the  fraud  already  committed,  thus 
holding  the  clerk  out  as  trustworthy ;  ^  in  both  these  and 
in  similar  cases  the  contracts  would  be  void  for  concealment. 
Silence  as  to  such  facts,  under  such  circumstances,  would 
be  equivalent  to  a   positive  affirmation  that   no  such  facts 

1  Maddeford  v.  Austwick,  1  Sim.  89;  2  M.  &  K.  279;  Smith  in  re  Hay, 
6  Madd.  2 ;  Popham  v.  Brooke,  5  Russ.  8. 

2  Gordon  v.  Gordon,  3  Swanst.  399;  Cocking  v.  Pratt,  1  Ves.  401. 
8  Maclary  v.  Reznor,  3  Del.  Ch.  445. 

*  Martin  v.  Morgan,  1  Brod.  &  Bing.  289;  Pidcock  v.  Bishop,  3  B.  &  Cr. 
605;  Owen  v.  Homan,  3  Eng.  L.  &  Eq.  121 ;  25  Eng.  L,  &  Eq.  1 ;  4  H.  L. 
Ca.  997;  Carew's  Case,  7  De  G.,  M.  &  G.  43;  Leith  Banking  Co.  v.  Bell, 
8  Shaw  &  Dun.  721;  Railton  v.  Matthews,  10  CI.  &  Fin.  935;  Hamilton 
V.  Watson,  12  CI.  &  Fin.  119;  Squire  v.  Whitton,  1  H.  L.  Ca.  333;  N. 
British  Ins.  Co.  v.  Lloyd,  28  Eng.  L.  &  Eq.  456;  10  Exch.  523;  Evans  v. 
Kneeland,  9  Ala.  42. 

5  Franklin  Bank  v.  Cooper,  36  Me.  195;  Smith  v.  Bank  of  Scotland,  1 
Dow,  P.  Ca.  272;  Etting  v.  Bank  of  U.  S.,  11  Wheat.  59;  Maltby's  Case, 
1  Dow,  P.  Ca.  294. 

219 


§  180.]  CONCLUSIVE  TRUSTS.  [CHAP.  VI. 

existed.  1  And  so,  if  a  party  knows  that  another  is  relying 
upon  his  judgment  and  knowledge  in  contracting  with  him, 
although  no  confidential  relation  exists,  and  he  does  not  state 
material  facts  within  his  knowledge,  the  contract  will  be 
avoided  ;  for  knowingly  to  permit  another  to  act  as  though 
the  relation  was  confidential,  and  yet  not  to  state  material 
facts,  is  fraudulent.  It  is  said  that  a  party  in  such  circum- 
stances is  hound  to  destroy  the  confidence  reposed  in  him,  or  to 
state  all  the  facts  tvhich  such  confidence  demands?  He  can- 
not himself  contract  at  arm's  length,  and  permit  the  other  to 
act  as  though  the  relation  was  one  of  trust  and  confidence. 
And  so,  if  one  party  knows  that  the  other  has  fallen  into  a 
delusion  or  mistake  as  to  an  article  of  property,  and  he  does 
not  remove  such  delusion  or  mistake,  but  is  silent,  and  enters 
into  a  contract,  knowing  that  the  other  is  contracting  under 
the  influence  of  such  delusion  or  mistake,  the  contract  may 
be  set  aside  ;  for,  not  to  remove  that  delusion  or  mistake  is 
equivalent  to  an  express  misrepresentation.^ 

§  180.  There  must  be  a  positive  concealment  to  amount 
to  a  suppressio  veri.  Mere  silence,  if  nothing  is  done  to  con- 
ceal a  fact,  is  not  in  general  suppressio  veri.  Aliud  est  celare, 
aliud  tacere.  Mere  silence  between  strangers,  contracting  at 
arm's  length,  and  understanding  that  they  are  so  contract- 
ing, will  not  in  general  avoid  a  contract,  or  convert  one  of  the 
parties  into  a  trustee  for  the  other.*  Thus,  the  value  of 
property  may  frequently   depend   upon  extrinsic  facts ;   as, 

1  Franklin  Bank  v.  Cooper,  36  Me.  195 ;  Smith  v.  Bank  of  Scotland,  1 
Dow,  P.  Ca.  272  ;  Ettiug  v.  Bank  of  U.  S.,  11  Wheat.  59 ;  Maltby's  Case, 
1  Dow,  P.  Ca.  294. 

2  Per  ]\Ir.  Redfield,  1  Story's  Eq.  Jur.  §  212  a;  Bruce  v.  Ruler,  2  Man. 
&  Ry.  3;  Fitzsimmons  v.  Joslin,  21  Vt.  129;  Hanson  v.  Edgerly,  29  N.  H. 
343;  Bank  of  Republic  v.  Baxter,  31  Vt.  101;  Allen  v.  Addington,  7 
Wend.  10;  11  Wend.  374;  Paddock  v.  Strobridge,  29  Vt.  470;  Dolman  r. 
Nokes,  22  Beav.  402;  Hayward  v.  Cope,  2.5  Beav.  140;  Foote  v.  Foote,  58 
Barb.  268;  Babcock  v.  Case,  61  Pa.  St.  427. 

8  Keates  v.  Cadogan,  2  Eng.  L.  &  Eq.  318;  Hill  r.  Gray,  1  Starkie,  434. 
*  Fox  V.  Mackreth,  2  Bro.  Ch.  300;  2  Cox,  320;  Harris  v.  Tyson,  24 
Pa.  St.  359 ;  Mathews  v.  Bliss,  22  Pick.  48. 
220 


CHAP.  VI,]  CONCEALMENT.  [§  180. 

whether  there  is  peace  or  war,  whether  there  is  or  is  not  a 
demand  iu  the  market,  or  in  a  distant  place  for  property 
of  that  description,  whether  transportation  is  accessible,  or 
whether  the  money  market  is  easy  or  close.  If  one  having 
information  upon  such  matters  enters  into  a  contract  with 
another  with  whom  he  has  no  confidential  or  fiduciary  rela- 
tions, and  he  neither  says  nor  does  anything  to  mislead  or 
deceive,  but  is  simply  silent  upon  the  facts  known  to  him, 
equity  will  not  in  general  disturb  the  contract ;  ^  but  if  he 
speaks  a  word,  or  does  an  act,  that  tends  to  mislead  the  other 
party,  or  throw  him  off  his  guard,  the  contract  may  be  avoided, 
and  he  may  be  converted  into  a  trustee.^  The  law  permits 
persons  to  deal  at  arm's  length,  if  they  both  understand  that 
they  are  so  dealing,  and  it  permits  them  to  be  silent  as  to 
matters  known  only  to  one  of  them,  if  no  inquiries  are  made ; 
but  it  does  not  permit  any  artifice  to  be  added  to  silence,  in 
order  to  conceal  a  fact  material  to  the  contract.  Thus,  con- 
cealment, or  sufpressio  vert,  which  amounts  to  a  fraud  in  the 
sense  of  a  court  of  equity,  and  for  which  it  will  grant  relief,  is 
defined  to  be  the  non-disclosure  of  those  facts  and  circum- 
stances which  one  party  is  under  some  legal  or  equitable  obli- 
gation to  communicate  to  the  other,  and  which  the  latter  has 
a  right,  not  merely  inforo  conscientice,  sed  juris  et  de  jure,  to 
know.^  Thus,  if  a  stranger  discover  a  valuable  mine  or 
spring,  or  any  other  thing  or  circumstances,  on  or  in  con- 
nection with  land  of  another,  he  may  be  silent,  and  purchase 
the  land  ;  *  but  if  he  use  any  art  to  prevent  a  knowledge  of 

1  Foxv.  Mackreth,  2  Bro.  Ch.  300;  2  Cox,  320;  Harris  v.  Tyson,  24  Pa. 
St.  359 ;  Mathews  v.  Bliss,  22  Pick.  48.  Mr.  Kent,  in  the  earlier  editions 
of  his  Commentaries,  stated  a  broader  doctrine,  but  his  later  editions  state 
the  doctrine  as  in  the  text.  See  2  Kent,  482,  484,  490,  and  notes;  Laid- 
law  V.  Organ,  2  Wheat.  178. 

2  Turner  v.  Harvey,  Jac.  169;  Laidlaw  v.  Organ,  2  Wheat.  178;  Mathews 
V.  Bliss,  22  Pick.  48. 

«  Young  V.  Bumpass,  1  Freem.  Ch.  241 ;  1  Story's  Eq.  Jur.  §  207;  Irvine 
V.  Kirkpatrick,  3  Eng.  L.  &  Eq.  17;  Laidlaw  v.  Organ,  2  Wheat.  178. 

4  Fox  V.  Mackreth,  2  Bro.  Ch.  400;  2  Cox,  300;  1  Lead.  Ca.  Eq.  188; 
Harris  v.  Tyson,  24  Pa.  St.  359;  Earl  of  Bath,  &c..  Case,  3  Ch.  Ca.  56, 
74,  103,  104;  Mathews  v.  Bliss,  22  Pick.  48. 

221 


§  181.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

the  fact  from  coming  to  the  owner,  equity  will  rescind  the 
contract,^  and  a  very  slight  act  will  convert  innocent  silence 
into  fraudulent  concealment.^  But  if  one  of  the  parties 
employs  an  agent  to  contract,  and  the  agent,  knowing  a 
material  fact,  is  silent  or  conceals  it,  his  principal  will  not 
be  affected  with  the  knowledge,  nor  will  the  contract  be 
vitiated.^ 

§  181.  Courts  of  equity  will  not  only  interfere  in  cases  of 
fraud,  to  set  aside  acts  done,  but  they  will  also,  if  acts  have 
by  fraud  been  prevented  from  being  done,  interfere,  and  treat 
the  case  exactly  as  if  the  acts  had  been  done  ;  and  this  they 
will  do,  by  converting  the  party  who  has  committed  the  fraud, 
and  profited  by  it,  into  a  trustee  for  the  party- in  whose  favor 
the  act  would  otherwise  have  been  done.*  If  one  by  a  prom- 
ise to  buy  land  at  an  auction  sale  for  one  having  an  equitable 
interest  in  it  induces  the  latter  and  her  friends  not  to  bid 
against  him,  he  will  be  held  a  trustee.^  Where  one  induces 
the  owner  of  real  estate  not  to  redeem  it  by  a  promise  to  hold 
the  property  until  paid  by  the  rents  and  profits,  and  then  to 
return  the  estate,  equity  will  hold  him  to  his  promise.^  So, 
if  a  delay  is  agreed  to  in  the  sale  of  land  on  a  promise  of  the 
debtor  to  sell  privately  and  apply  the  proceeds  in  a  certain 
manner,  the  proceeds  will  be  impressed  with  a  trust.^  If  a 
person  by  his  promises,  or  by  any  fraudulent  conduct,  with  a 
view  to  his  own  profit,  prevents  a  deed  or  will  from  being 

1  Bowman  v.  Bates,  2  Bibb,  47. 

■^  Turner  v.  Harvey,  Jac.  169;  Laidlaw  v.  Organ,  2  Wheat.  178;  Torrey 
V.  Buck,  1  Green,  Ch.  380;  Mathews  v.  Bliss,  22  Pick.  48. 

3  Wilde  V.  Gibson,  1  H.  L.  Ca.  605,  reversing  same  case,  2  You.  &  Col. 
542. 

*  Middleton  v.  Middleton,  1  Jac.  &  W.  96;  Reech  v.  Kennegall,  1  Yes. 
123;  Oldham  v.  Litchford,  2  Vern.  506;  Button  v.  Poole,  2  Lev.  211; 
Mestaer  v.  Gillespie,  11  Yes.  638,  and  cases  cited;  Jenkins  v.  Edridge,  3 
Story,  181.  See  remarks  in  McGowan  v.  McGowan,  14  Gray,  119;  Morey 
V.  Herrick,  18  Pa.  St.  128;  Wallgrave  v.  Tebbs,  2  K.  &  J.  313;  Dixon  v. 
Olmius,  1  Cox,  Ch.  414. 

8  Cowperthwaite  v.  Bank,  102  Pa.  St.  397  ;  Heath's  App.,  100  Pa.  St.  1. 

^  Scheffermeyer  v.  Schaper,  97  Ind.  70. 

'  Boyce  v.  Stanton,  15  Lea,  346. 

222 


CHAP.  VI.]  CONCEALMENT.  [§  181. 

made  in  favor  of  a  third  person,  and  the  property  intended  for 
such  third  person  afterwards  comes  to  him  who  fraudulently 
prevented  the  execution  of  the  will  or  deed,  he  will  be  held  to 
be  a  trustee  for  the  person  defrauded,  to  the  extent  of  the 
interest  intended  for  him.^  So,  where  the  tenant  in  tail  in 
remainder,  fraudulently  or  by  force,  prevented  the  tenant  in 
tail  for  life  in  possession  from  suffering  a  common  recovery, 
and  thereby  barring  the  entail  for  the  purpose  of  providing 
for  other  persons  by  will  out  of  the  estate,  it  was  held  that 
the  tenant  in  tail  in  remainder,  when  the  estate  came  to  him, 
was  a  trustee,  and  the  court  took  care  that  the  estate  should 
go  precisely  as  if  the  common  recovery  had  been  suffered, 
although  the  tenant  in  tail  was  a  married  woman,  and  the 
fraud  had  been  committed  by  her  husband,  and  she  was  not 
privy  to  it.^  And  where  issue  in  tail  prevented  his  father, 
tenant  in  tail,  from  suffering  a  recovery,  by  promising  to  pro- 
vide for  younger  children,  in  favor  of  whom  the  recovery  was 
to  be  suffered,  equity  converted  the  tenant  in  tail  into  a  trus- 
tee for  the  younger  children.^  And  where  a  person  fraudu- 
lently intercepts  a  gift  intended  for  another,  by  promising  to 
hand  it  over  if  it  is  left  to  him,  equity  will  compel  an  execu- 
tion of  the  promise,  by  converting  such  person  into  a  trustee.* 
So,  if  devisees  or  heirs  prevent  a  testator  from  charging  his 
estate  with  annuities  or  legacies,  by  saying  that  it  is  not 
worth  while  to  put  them  in  the  will,  and  that  they  will  pay 
them,  they  will  be  trustees  for  such  intended  annuitants  or 

1  Middleton  v.  Middleton,  1  Jac.  &  W.  96;  Reech  v.  Kennegall,  1  Yes. 
123;  Oldham  v.  Litchord,  2  Vern.  506;  Button  v.  Poole,  2  Lev.  211; 
Mestaer  v.  Gillespie,  11  Ves.  638,  and  cases  cited;  Jenkins  v.  Edridge,  3 
Story,  181.  See  remarks  in  McGowan  v.  McGowan,  14  Gray,  119;  Morey 
V.  Herrick,  18  Pa.  St.  128;  Wallgrave  v.  Tebbs,  2  K.  &  J.  313;  Dixon  ;'. 
Olmius,  1  Cox,  Ch.  414;  Church  v.  Ruland,  64  Pa.  St.  432;  Fischbeck  v. 
Gross,  112  111.  208. 

2  Luttrell  V.  Olmius,  and  Waltham's  Case,  cited  11  Ves.  638;  and  14 
Ves.  290. 

8  Jones  V.  McKee,  6  Barr,  428;  Devenish  v.  Baines,  Prec.  Ch.  4. 

*  Hoge  V.  Hoge,  1  Watts,  213 ;  Devenish  v.  Baines,  Prec.  Ch.  4;  Church 
V.  Ruland,  64  Pa.  St.  432;  Dowd  v.  Tucker,  41  Conn.  198;  Williams  v. 
Vreeland,  29  N.  J.  Eq.  417. 

223 


§  181.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

legatees.!  So,  if  an  executor  prevents  a  gift  or  legacy  from 
being  given  to  one,  by  promising  to  pay  it  as  if  inserted  in 
the  will,  lie  will  be  a  trustee.^  So,  where  a  testator  held  a 
note  against  his  father,  which  he  intended  to  give  up  in  his 
will,  the  residuary  legatee  promising  that  she  would  surrender 
the  note,  equity  held  her  to  be  a  trustee.^  So,  where  one 
fraudulently  procured  a  deed  to  be  made  to  herself,  instead 
of  to  another.*  But  there  must  be  some  actual  fraud  in  pro- 
curing a  deed  or  devise  to  one's  self :  the  mere  breach  of  a 
promise  to  convey  is  not  enough.^  Where  the  plaintiff  wished 
to  buy  certain  land  and  engaged  the  defendant  to  find  some  one 
who  would  lend  the  plaintiff  the  necessary  money,  and  the 
defendant  dissuaded  the  plaintiff  from  seeking  the  money 
in  other  directions,  in  consequence  of  which  the  plaintiff  did 
to  some  extent  abstain  from  trying  to  get  the  funds  elsewhere, 
and  the  defendant  bought  the  land  on  his  own  behalf  with  his 
own  money  and  took  a  deed  to  himself,  it  was  held  that  the 
defendant  was  not  a  trustee  for  the  plaintiff  either  on  the 
ground  of  agency  or  fraud.  Judge  Holmes  said :  "  In  any 
view  of  the  law,  before  we  can  convert  a  man  into  a  trustee, 
on  the  ground  of  fraud,  we  must  be  able  to  see  with  some 
reasonable  certainty  that  his  fraud  was  the  means  of  depriv- 
ing the  plaintiff  of  the  property  he  seeks  to  follow,"  and  in 
this  case  he  did  not  deem  it  probable  that  such  was  the  con- 
sequence of  the  defendant's  fraudulent  concealment  of  his 
intent  to  buy,  and  of  his  dissuasions.^  We  think  this  decision 
is  open  to  severe  criticism.     Such  fraudulent  conduct  should 

-  Chamberlain  v.  Chamberlain,  2  Freem.  34;  Oldham  r.  Litchford.  2 
Vern.  506;  Mestaer  v.  Gillespie,  11  Ves.  638;  Pluguenin  v.  Baseley,  14 
Ves.  290;  Griffin  v.  Nanson,  4  Ves.  344;  Hoge  v.  Hoge,  1  AVatts,  213; 
Jones  V.  McKee,  3  Barr,  496,  and  4  Barr,  428;  Norris  v.  Frazer,  L.  R,  15 
Eq.  329;  McCormick  i'.  Grogan,  L.  R.  4  H.  L.  82. 

2  Thynn  v.  Thynn,  1  Vern.  296;  Reach  v.  Kennigate,  Amb.  67;  Bar- 
row V.  Greenbough,  3  Ves.  152;  Chamberlain  v.  Agar,  2  V.  &  B.  250; 
Podmore  v.  Gunning,  7  Sm.  644. 

2  Richardson  v.  Adams,  10  Yerg.  273;  Jones  v.  McKee,  3  Barr,  496. 

*  Miller  v.  Pearce,  6  Watts  &  S.  97. 

6  Hoge  V.  Hoge,  1  Watts,  213. 

6  Collins  V.  Sullivan,  135  Mass.  461,  463. 
224 


CHAP.  VI.]  ACTS   PREVENTED   BY   FRAUD.  [§  182. 

be  repressed  with  a  strong  hand,  the  presumption  should  be 
against  the  evil  doer  so  strongly  as  to  cut  off  the  chance  of 
his  gaining  an  advantage  by  his  own  wrong  or  keeping  it  if 
gained.  If  an  heir  fraudulently,  or  through  ignorance,  pro- 
cure a  will  to  be  revoked,  so  that  the  estate  comes  to  him,  he 
will  be  a  trustee  ;  as,  where  A.  had  sold  a  part  of  his  estate, 
and  the  purchaser  desired  a  fine  to  be  levied,  B.,  his  heir, 
acting  as  his  attorney,  advised  a  fine  to  be  levied  of  his  whole 
estate,  whereby  A.'s  will  was  revoked,  and  the  estate  de- 
scended to  B.;  the  devisee  under  the  will  called  upon  B.  to 
hold  the  property  as  his  trustee,  and  he  was  so  held  by  the 
court ;  Lord  Eldon  saying,  "  You,  who  have  been  wanting  in 
what  I  conceive  to  be  the  duty  of  an  attorney,  if  it  happens  that 
you  get  an  advantage  by  that  neglect,  you  shall  not  hold  that 
advantage,  but  you  shall  be  trustee  of  the  property  for  the 
benefit  of  that  person  who  would  have  been  entitled  to  it  if 
you  had  known  what,  as  an  attorney,  you  ought  to  have 
known,  and,  not  knowing  it,  you  shall  not  take  advantage  of 
your  own  ignorance."  ^  In  such  cases  it  has  been  held  that 
mere  promises  are  not  enough,  that  there  must  be  some  proof 
of  a  fraudulent  intent  or  purpose,  to  create  a  trust ;  it  is  also 
held  that  such  trust  does  not  follow  the  property,  but  is  only 
an  agreement  which  equity  will  enforce.^ 

§  182.  While  a  court  of  equity  will  thus  create  a  trust 
where  a  person  has  by  fraud  prevented  a  will  from  being 
made  in  favor  of  another,  it  has  no  jurisdiction  to  prevent 
the  probate  of,  or  to  set  aside,  a  will  fraudulently  procured. 
Ecclesiastical  and  common-law  courts  in  England,  and  pro- 
bate courts  with  the  common-law  courts  in  the  United  States, 
alone  have  jurisdiction  over  wills.  Thus,  until  within  a  short 
period  all  wills  in  England  were  first  presented  to  the  eccle- 
siastical courts,  and  they  were  there  allowed  or  disallowed 
according  to  the  evidence.      If  they  were  allowed,  the  final 

1  Bulkley  v.  Wilford,  2  CI.  &  Fin.  177;  8  Bligh  (n.  s.),  11;  Segrave  v. 
Kirwan,  Beat.  157;  Nanney  v.  Williams,  22  Beav.  452.  See  Mix  v.  King, 
55  111.  434. 

2  Bedilian  v.  Seaton,  3  Wall.  Jr.  280. 

VOL.  I.  — 15  225 


§  182.]  '         CONSTRUCTIVE    TRUSTS.  [CHAP.  VI. 

judgment  allowing  them  was  conclusive  upon  the  personalty 
until  such  judgment  was  reversed  or  annulled.  The  validity 
of  such  will,  however,  so  far  as  real  estate  was  concerned, 
was  tried  in  the  courts  of  common  law  as  often  as  the  title 
to  the  separate  parcels  of  land  was  in  controversy.  When- 
ever in  the  prosecution  or  defence  of  a  real  action  such  will 
of  real  estate  was  given  in  evidence,  not  only  its  execution 
was  tried,  but  its  validity,  as  whether  it  was  obtained  by 
undue  influence  or  fraud,  or  whether  the  testator  was  of 
sound  mind.  Courts  of  equity  in  a  few  early  cases  assumed 
jurisdiction  to  set  aside  wills  procured  by  fraud,^  but  it  is  now 
well  settled  that  they  will  not  interfere,  but  that  courts  of 
common  law  have  exclusive  jurisdiction ;  nor  will  they  inter- 
fere to  set  aside  the  judgment  or  probate  of  a  will  procured 
by  fraud.2  To  set  aside  such  a  judgment,  proceedings  must 
be  had  in  the  nature  of  proceedings  for  a  new  trial  in  the 
court  in  which  such  judgment  or  decree  was  passed.^  The 
extent  to  which  a  court  of  equity  will  go  in  correcting  a 
fraud  perpetrated  in  relation  to  a  will,  is  to  give  relief  where 
fraud  has  prevented  a  will  from  being  made,  or  where  a  fraud 
has  been  practised  upon  the  legatee,  as  where  a  name  is  in- 
serted fraudulently  in  a  will  in  place  of  the  intended  dcA'isee 
or  legatee,  or  where  the  revocation  of  a  will  has  been  procured 
or  prevented  by  fraud,*  or  where  thei'e  is  a  gift  to  executors 

1  Maundy  v.  Maundy,  1  Ch.  R.  66;  Well  v.  Thornagh,  Pr  Ch.  123; 
Goss  V.  Tracy,  1  P.  Wms.  287;  2  Vern.  700. 

2  Roberts  v.  Wynne,  1  Ch.  R.  125;  Archer  v.  INIosse,  2  Vern.  8,  Her- 
bert V.  Lownes,  1  Ch.  R.  13;  Thynn  v.  Thynn,  1  Vern.  296;  Devenish  v. 
Baines,  1  Pr.  Ch.  3;  Barnesley  v.  Powell,  1  Ves.  287;  Marriott  v.  IMarriott, 
Str.  666;  Plume  v.  Beale,  1  P.  Wms.  388;  Rock  wood  i-.  Rockwood,  1  Leon. 
192;  Cro.  Eliz.  163;  Button  v.  Poole,  1  Vent.  318;  Beringer  v.  Beringer, 
26  Car.  TI. ;  Chamberlain  v.  Chamberlain,  2  Freem.  34;  Leicester  v.  Fox- 
croft,  Gilb.  11 ;  Ketrick  v.  Barnsby,  3  Bro.  P.  C.  358 ;  Webb  v.  Claverden, 
2  Atk.  424;  Bennett  d.  Vade,  Id.  324;  Anon.,  3  Atk.  17;  Sheffield  v. 
Buckingham,  1  Atk.  628;  Allen  v.  Macpherson,  5  Beav.  469;  1  Phill.  133; 
1  H.  L.  Ca.  191 ;  Murray  v.  Murphy,  39  Miss.  214. 

2  Waters  v.  Stickney,  12  Allen,  1. 

*  Bulkley  v.  Wilford,  2  CI.  &  Fin.  177;  8  Bligh  (n.  s.),  11:  Segrave  ». 
Kirwan,  Beat.  157;  Nanney  v.  Williams,  22  Beav.  452;  Dowd  v.  Tucker, 
41  Conn.  198;  Williams  v.  Vreeland,  29  N.  J.  Eq.  417. 
226 


CHAP.  VI.]  ACTS   PREVENTED   BY   FRAUD.  [§  182. 

under  such  circumstances  tliat  it  ought  to  be  a  trust  for  rela- 
tions, or  where  a  legatee  promises  the  testator  that  he  will 
hand  over  the  legacy  to  a  third  person.^  In  all  these  cases 
the  will  itself  is  established,  but  certain  other  collateral  things 
are  decreed  growing  out  of  the  manner  in  which  the  will  was 
procured.2  In  New  York,  New  Jersey,  and  South  Carolina, 
the  old  English  practice  is  followed,  and  wills  must  be  proved 
whenever  they  are  used  to  establish  or  defeat  the  title  to  real 
estate,  nor  has  a  court  of  equity  jurisdiction  to  set  them  aside. 
This  rule  has  been  modified  in  New  York  so  far  that  when 
the  title  of  real  estate  depends  upon  a  will,  the  validity  of 
which  is  doubted,  and  the  parties  are  not  in  possession  of  the 
real  estate,  nor  in  such  a  position  that  a  real  action  can  be 
brought,  or  if  there  is  any  technical  reason  why  a  real  action 
cannot  be  sustained,  a  court  of  equity  will  take  jurisdiction 
to  prevent  a  failure  of  justice.^  In  nearly  all  the  other  States 
the  judgments  of  the  courts  of  probate  allowing  a  will  are 
conclusive  upon  all  the  world,  both  as  to  real  and  personal 
estate.  In  all  actions  at  law  involving  title  under  such  wills, 
it  is  only  necessary  to  produce  the  judgment  of  the  probate 
court  allowing  them.  Courts  of  equity  have  no  jurisdiction 
to  set  aside  such  wills  for  fraud,  nor  can  they  set  aside  the 
judgments  of  the  probate  court  allowing  them.*  If,  however, 
a  will  is  probated  by  accident  or  mistake,  or  the  probate  is 
procured  by  fraud,  the  judgment  may  be  reversed  or  modified 
by  proceedings  in  the  same  court  in  the  nature  of  a  petition 

1  Kennell  ».  Abbott,  4  Ves.  802;  Marriott  v.  Marriott,  Str.  666,  cited 
Gilbert,  203,  209;  Williams  v.  Fitch,  18  N.  Y.  546 ;  7  Sim.  644 ;  1  Watts, 
163;  Church  v.  Ruland,  64  Pa.  St.  432. 

2  IMarriott  v.  IMarriott,  Str.  &  Gil.  ut  supra. 

8  Brady  v.  McCosker,  1  Comst.  214;  Clarke  v.  Sawyer,  2  Com.  498. 

*  Gould  V.  Gould,  3  Story,  516;  Fouvergne  v.  New  Orleans,  18  How. 
470;  Gaines  v.  Chew,  2  How.  645;  Tarver  v.  Tarver,  9  Pet.  180;  Adams 
V.  Adams,  22  Yt.  50;  Cotton  v.  Ross,  1  Paige,  396;  Muir  v.  Trustees, 
3  Barb.  Ch.  477;  Haraberlin  v.  Tenny,  7  How.  (Miss.)  143;  Lyne  v. 
Guardian,  1  Miss.  410;  Hunter's  Will,  6  Ohio,  499;  Watson  v.  Both  well. 
11  Ala.  653;  Johnson  v.  Glasscock,  2  Ala.  233;  Hunt  v.  Hamilton,  9  Dana, 
90  ;  McDowall  v.  Peyton,  2  Des.  313;  Howell ;.'.  Whitchurch,  4  Heyw.  49; 
Burrows  v.  Ragland,  6  Humph.  481 ;  Blue  v.  Patterson,  1  Dev.  &  Bat.  Eq. 
459 ;  Trexler  v.  Miller,  6  Ired.  Eq.  248. 

227 


§  183.]  CONSTRUCTIVE  TRUSTS.  [CHAP.  VI. 

for  a  review  or  for  a  new  trial.^  This,  however,  may  depend 
upon  the  statutes  of  the  several  States  giving  jurisdiction  to 
their  several  courts  of  probate.  While  courts  of  equity  will 
not  interfere  to  set  aside  wills  procured  by  fraud,  or  to  set 
aside  the  probate  of  those  procured  by  fraud,  they  will  not 
interfere  in  favor  of  the  fraudulent  party  to  enable  him  to 
establish  any  rights  under  the  will.^  As  a  general  rule 
neither  courts  of  equity  nor  of  common  law  will  take  notice 
of  a  will  for  any  purpose  unless  it  has  been  proved  in  the 
courts  of  probate  having  jurisdiction  over  such  matters.^ 

§  183.  Another  instance  of  a  constructive  trust  arising  from 
fraud  in  relation  to  deeds  or  wills,  is  where  a  party  has 
suppressed  or  destroyed  a  deed  or  other  instrument  of  title. 
Every  one  is  entitled  to  aid  from  the  judicial  tribunals  in  all 
cases  of  fraud,  and  if  a  defendant  has  fraudulently  suppressed 
or  destroyed  the  evidence  of  a  man's  title,  and  is  in  possession 
of  the  property  himself,  he  ought  to  be  declared  a  trustee  for 
the  rightful  owner  under  the  suppressed  paper ;  *  and  if  a 
deed  or  will  is  destroyed  or  suppressed,  a  court  of  equity  can 
give  relief.  There  seems  to  be  no  difficulty  in  this  matter  so 
far  as  relates  to  deeds,^  nor  so  far  as  relates  to  wills  of  real 
estate  in  those  jurisdictions  where  a  will  must  be  proved  in 

^  "Waters  v.  Stickney,  12  Allen,  1. 

2  Nelson  v.  Oldfield,  2  Vern.  76. 

8  Price  V.  Dewhurst,  4  My.  &  Cr.  76,  80,  81 ;  Gaines  v.  Chew,  2  How. 
645,  646. 

4  Bates  V.  Heard,  Toth.  66;  1  Dick.  4;  Tucker  v.  Phipps,  3  Atk.  360 
Hayne  v.  Hayne,  1  Dick.  18;  Eyton  v.  Eyton,  2  Vern.  280;  Pr.  Ch.  116 
Dalston  v.  Coatsworth,  1  P.  Wms.  731;  Woodroff  v.  Burton,  1  P.  Wms 
734 ;  Saltern  v.  Melhuish,  Amb.  249  ;  Cowper  v.  Cowper,  2  P.  Wms.  748 
Gartside  v.  Radcliffe,  1  Ch.  Ca.  292 ;    Hunt  v.  Mathews,  1  Vern.  408 
AVardour  v.  Beresford,  1  Vern.  4.52;  Downes  v.  Jennings,  32  Beav.  290 
Sansom  v.  Rumsey,  2  Vern.  561  ;  1  P.  Wms.  733 ;  Hampden  v.  Hampden, 
3  Bro.  P.  C.  550;  1  P.  Wms.  733;  Spencer  v.  Smith,  1  N.  C.  C.  75;  Mid- 
dleton  V.  Middleton,  1  J.  &  W.  99;  Wood  v.  Abrey,  3  Mod.  423;  Floyer 
V.  Sherrard,  Amb.  18;  Coles  v.  Trecothick,  9  Ves.  246;  Law  r.  Barchard, 
8  Ves.  133;  White  v.  Damon,  7  Ves.  35;  Moth  v.  Atwood,  5  Ves.  845; 
Stephens  v.  Bateman,  1  Bro.  Ch.  22;  Griffith  v.  Spratley,  2  Bro.  Ch.  179. 

6  Ward  V.  Webber,  1  Wash.  (Va.)  274. 
228 


CHAP.  VL]  ignorance    AND    MISTAKE.  [§  184. 

court  in  every  instance  where  it  is  necessary  to  the  title  of 
real  estate  ;  but  in  jurisdictions  where  a  will  cannot  be  noticed 
by  other  courts  until  it  is  first  proved  in  a  court  of  probate, 
there  is  a  difficulty  in  proceeding  in  equity  for  fraud  in  sup- 
pressing it,  except  by  a  bill  of  discovery  of  evidence  to  use  in 
the  courts  of  probate  in  proving  the  will.  Accordingly  it 
has  been  determined  in  some  States  that  Or  will  cannot  be 
acted  upon  in  courts  of  equity,  although  lost,  destroyed,  or 
suppressed,  until  it  is  first  proved  in  a  probate  court.^  In 
other  States,  courts  of  equity,  in  cases  of  suppressed  or  spoli- 
ated wills,  have  taken  jurisdiction  in  odium  spoliatoris,  and 
have  allowed  such  will  to  be  proved,  and  have  carried  its  pro- 
visions into  effect,  as  a  court  of  probate  would  have  done  if 
the  will  had  been  produced  and  regularly  administered.^ 

§  184.  If  a  party  in  ignorance  and  mistake  of  his  rights 
and  interests  execute  a  conveyance,  although  no  fraud  is 
practised  upon  him,  a  court  of  equity  will  relieve  against  the 
instrument ;  for  it  is  against  good  conscience  to  take  advan- 
tage of  one's  ignorance  to  obtain  his  property .^  Thus,  if  an 
heir,  in  ignorance  of  the  value  of  his  inheritance,^  or  in  igno- 
rance that  some  legacies  or  devises  had  lapsed,^  should  convey 
his   interest   for   an  inadequate  consideration,  equity  would 

1  Morningstar  v.  Selby,  15  Ohio,  345;  Gaines  v.  Chew,  2  How.  345; 
Gaines  v.  Hennen,  24  How.  553. 

2  Bailey  v.  Stiles,  1  Green,  Ch.  220;  Allison  v.  Allison,  7  Dana,  90; 
Legare  v.  Ashe,  1  Bay,  464;  Meade  v.  Langdon,  cited  22  Vt.  59  ;  Buchanan 
V.  Matlock,  8  Humph.  390.  In  New  York,  the  matter  is  regulated  by 
statute,  and  courts  of  equity  or  the  Supreme  Court  has  exclusive  jurisdic- 
tion in  case  of  a  lost  or  spoliated  will.  Bowen  v,  Idley,  6  Paige,  46; 
Bulkley  v.  Redmond,  2  Brad.  Sur.  281. 

8  Bingham  v.  Bingham,  1  Ves.  126;  Ramsden  v.  Hylton,  2  Ves.  394; 
Turner  v.  Turner,  2  Ch,  R.  81 ;  Dunnages.  White,  1  Swanst.  137;  Naylor 
V.  Wynch,  1  S.  &  S.  564;  Evans  v.  Llewellyn,  2  Bro.  Ch.  150;  1  Cox, 
333;  Gossraour  v.  Pigge,  8  Jur.  526;  McCarthy  v.  Decaix,  2  R.  &M.  614; 
Huguenin  v.  Baseley,  14  Ves.  273;  Hore  v.  Beecher,  12  Sim.  465;  Mar- 
shall 0.  Collett,  1  Y.  &  Col.  Exch.  238;  Midland  Great  Western  Railway 
V.  John.son,  6  H.  L.  Ca.  811. 

<  Beard  v.  Campbell,  2  A.  K.  Marsh.  125;  Tyler  v.  Black,  13  How.  231. 

^  Pusey  V.  Desbouvrie,  3  P.  Wms.  316. 

229 


§  184.]  CONSTEUCTIVE   TRUSTS.  [CHAP.  VI. 

convert  the  purchaser  into  a  trustee.  And  if  the  purchaser 
should  have  full  knowledge,  or  should  stand  in  any  confi- 
dential relation,  or  should  practise  the  slightest  art  to  mislead 
or  conceal,  the  equities  would  of  course  be  much  stronger 
against  the  transaction ;  ^  but  these  circumstances  are  not 
necessary  to  avoid  the  conveyance,  for  relief  will  be  granted 
where  both  parties  are  in  a  mutual  state  of  ignorance,  or  are 
laboring  under  the  same  mistake.^  It  is  to  be  observed,  how- 
ever, that  the  ignorance  or  mistake  which  entitles  a  party  to 
relief  must  be  as  to  some  matter  of  fact ;  and  that  mistake  or 
ignorance  of  the  law,  or  of  the  consequences  that  will  follow 
from  the  conveyance,  will  not  entitle  a  party  to  relief.^  This 
rule  is  established  by  reason  of  the  great  danger  of  abuse  that 
would  arise  if  parties  were  allowed  to  reclaim  their  property 
upon  allegations  that  they  were  ignorant  of  the  law,  or  mis- 
took the  consequences  of  their  acts.*  Thus,  if  a  party  has 
full  knowledge  of  all  the  facts,  and  intends  to  do  the  acts  or 
execute  the  instruments  in  question  in  the  form  in  which  they 
are  executed,  he  cannot  have  relief  because  he  was  ignorant 
of  or  mistook  the  law,  or  because  the  consequences  which 
legally  and  naturally  follow  from  the  transaction  are  different 
from  what  he  expected.^     But  if  there  is  a  mistake  in  the 

1  Gossmour  v.  Pigge,  13  L.  J.  Ch.  322;  Tyler  v.  Black,  13  How.  231; 
McCarthy  v.  Decaix,  2  R.  &  M.  222;  Cocking  i'.  Pratt,  1  Ves.  400. 

2  Ibid. ;  Lansdowne  v.  Lansdowne,  2  J.  &  W.  205;  Mose.  364;  Willan 
V.  Willan,  16  Ves.  72. 

3  Marshall  v.  Collett,  1  Y.  &  C.  Exch.  238;  Midland  Great  Western 
Railway  ;>.  Johnson,  6  H.  L.  Ca.  811;  Hunt  v.  Rousmaniere,  1  Pet.  1; 
Brown  v.  Ingham,  1  Bro.  Ch.  92;  PiiUen  v.  Ready,  2  Atk.  591  ;  Magniac 
V.  Thompson,  2  Wall.  Jr.  209;  Campbell  c.  Carter,  14  111.  286;  Hall  w. 
Read,  2  Barb.  Ch.  503;  Brown  v.  Armistead,  6  Rand.  594;  Hinchman  v. 
Emans,  Saxt.  100;  Freeman  v.  Cook,  6  Ired.  Eq.  378;  Gunter  u.  Thomas, 
1  Ired.  Eq.  199;  Crofts  v.  Middleton,  2  K.  &  J.  194;  Wintermute  v.  Sny- 
der, 2  Green,  Ch.  498;  Farley  v.  Bryant,  32  Me.  474;  Fergerson  v.  Ferger- 
son,  1  Ga.  Dec.  135;  Freeman  v.  Curtis,  51  Me.  140, 

*  Bilbie  v.  Lumley,  2  East,  472 ;  Lyon  v.  Richmond,  2  Johns.  Ch.  51 ; 
ShotvYcll  V.  Murray,  1  Johns.  Ch.  512;  Storrs  v.  Barker,  6  Johns.  Ch.  169; 
Proctor  V.  Thrall,  22  Vt.  262. 

s  Storrs  V.  Barker,  6  Johns.  Ch.  169;  Lyon  v.  Saunders,  23  Miss.  124; 
Shafer  v.  Davis,  13  111.  395;  Emmett  v.  Dewhirst,  8  Eng.  L.  &  Eq.  83; 

230 


CHAP.  VI.]  IGNORANCE   AND   MISTAKE.  [§  185. 

instrument  itself,  and  it  contains  what  was  not  agreed  or 
intended,  or  does  not  contain  all  that  was  agreed  and  in- 
tended, to  be  in  the  writing,  equity  will  give  relief.^  And 
if  there  are  any  other  ingredients  in  the  case,  as  if  there  is 
joined  to  a  party's  ignorance  or  mistake  of  the  law  some 
practice  upon  him  to  lead  him  into  the  bargain,^  or  if  the 
other  party,  knowing  his  ignorance  or  mistake,  still  suffers 
him  to  go  on  without  information,^  equity  will  give  relief.  If 
there  are  any  exceptions  to  the  rule  that  ignorance  or  mis- 
take of  the  law  is  not  a  ground  for  relief,  they  are  few  in 
number,  and  have  something  peculiar  in  their  character, 
which  calls  in  other  elements  of  equity,  or  they  stand  upon 
some  urgent  pressure  of  circumstances.* 

§  185.  When  a  conveyance  is  made  to  compromise  claims 
which  the  parties  deem  doubtful,^  and  especially  if  the  con- 
veyance has  for  its  object  the  settlement  of  family  controver- 
sies,^ courts  will  support  it  if  possible,  although  founded  in 

Hunt  V.  Rousmaniere,  1  Pet.  1 ;  Farley  v.  Bryant,  32  Me.  474;  Mellish  v. 
Robertson,  25  Vt.  608;  Gilbert  i\  Gilbert,  9  Barb.  532  ;  Arthur  v.  Arthur, 
10  Barb.  9 ,  Freeman  r.  Curtis,  51  Me.  140. 

1  Heacock  v.  Fly,  14  Fa.  St.  541;  Larkins  v.  Biddle,  21  Ala.  256; 
Wyche  v.  Green,  11  Ga.  169;  16  Ga.  49;  Moser  v.  Lebenguth,  2  Rawle, 
428 ;  Fitzgerald  v.  Peck,  4  Litt.  127. 

2  1  Story's  Eq.  Jur.  §  133. 

8  Cook  V.  Nathan,  16  Barb.  342;  Langstaffe  v.  Fenwick,  10  Ves.  405. 

*  State  V.  Paup,  13  Ark.  135;  Hunt  v.  Rousmaniere,  1  Pet.  1 ;  1  Story's 
Eq.  Jur.  §§  116,  137. 

^  Brown  i'.  Pring,  1  Ves.  407;  Cann  v.  Cann,  1  P.  Wms.  727;  Naylor 
V.  Winch,  1  Sim.  &  S.  555  ;  Goodman  v.  Bayers,  2  J.  &  W  263  ;  Pickering 
V.  Pickermg,  2  Beav.  91;  Stewart  v.  Stewart,  6  CI.  &  Fin.  699;  Gibbons 
V.  Caunt,  4  Ves.  849;  Neale  v.  Neale,  1  Keen,  672;  Attorney-General  v. 
Boucherett, '25  Beav.  116;  Wiles  v.  Greshon,  5  De  G.,  M.  &  G.  770; 
Bradley  v.  Chase,  22  Me.  511;  Richardson  i-.  Eyton,  15  Eng.  L.  &  Eq.  51 ; 
2  De  G.,  M   &  G.  79. 

6  Currie  v  Steele,  2  Sandf.  542;  Stone  v.  Godfrey,  27  Eng.  L.  &  Eq. 
318 ;  5  De  G..  M.  &  G.  76 ;  Gordon  v.  Gordon,  3  Swanst.  463,  476 ;  Stock- 
ley  V.  Stockley,  1  V.  &  B.  29;  Bellamy  v.  Sabine,  2  Phill.  425;  Stapilton 
V.  Stapilton,  1  Atk.  10;  3  Lead.  Ca.  Eq.  684;  Cann  v.  Cann,  1  P.  Wms. 
727;  Persse  v.  Persse,  1  West,  110;  7  CI.  &  Fin.  279;  Cory  v.  Cory, 
1  Ves.  19;  Heap  v.  Tonge,  7  Eng.  L.  &  Eq.  189;  9  Hare,  90;  Leonard  v. 

231 


§  186.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

ignorance  or  mistake  of  facts,  as  well  as  of  law ;  provided 
no  fraud  has  been  used  to  mislead  and  deceive  the  party  exe- 
cuting the  conveyance.^ 

§  186.  If  a  deed  is  drawn  by  accident  or  mistake  to  em- 
brace property  not  intended  by  the  parties,  equity  will  con- 
strue the  grantee  to  be  a  trustee,  and  will  execute  the  trust 
by  reforming  the  deed  or  by  ordering  a  reconveyance.  It 
would  be  against  natural  right  to  allow  a  person  to  hold 
property  which  he  never  intended  to  buy,  and  which  has  come 
to  him  by  such  mistake.^  If  by  a  mistake  of  a  third  party 
land  is  deeded  to  the  husband  instead  of  the  wife,  as  it  should 
have  been  by  reason  of  the  consideration  and  the  agreement, 
the  husband  holds  in  trust  for  her.^  But  courts  require  the 
most  full  and  satisfactory  proof  before  they  will  vary  by  parol 
evidence  the  contract  between  the  parties,  as  written  and 
signed  by  them,*  and  will  not  give  relief  unless  the  mistake 
is  common  to  both  parties,^  except  the  case  is  such  that  the 

Leonard,  2  Ball  &  B.  171 ;  Dunnage  v.  White,  1  Swanst.  137;  Harvey  v. 
Cook,  4  Russ.  34  ;  Jodrell  v.  Jodrell,  9  Beav  45;  Frank  v.  Frank,  1  Ch. 
Ca.  84. 

1  Smith  V.  Pincombe,  10  Eng.  L.  &  Eq.  50;  3  Mac.  &  G.  653;  Groves 
V.  Perkins,  6  Sim.  576;  Hoge  v.  Iloge,  1  Watts,  163;  Dunnage  v.  White, 
1  Swanst.  137  ;  Evans  v.  Llewellyn,  1  Cox,  333;  2  Bro.  Ch.  150;  Towns- 
hend  v.  Stangroom,  6  Ves.  333;  Chesterfield  v.  Janssen,  2  Ves.  155; 
Ormond  v.  Hutchinson,  13  Ves.  51;  Henly  v.  Cook,  4  Russ.  34;  Staintoa 
V.  Carson  Co.,  6  Jur.  (n.  s  )  360;  Ashurst  v.  Mill,  7  Hare,  502;  Lawton 
V.  Campion,  18  Beav.  87;  Bennett  v.  Merriman,  6  Beav.  360;  Hogton  v. 
Hogton,  15  Beav.  278,  11  Eng.  L   &  Eq.  134. 

2  Exeter  v.  Exeter,  3  M.  &  Cr.  321 :  Lindo  v.  Lindo,  1  Beav.   496 
Ramsden  v.  Hylton,  2  Ves.  304;  Beaumont  v.  Bramley,  T.    &   R.    52 
Underhill  v.   Horwood,  10  Ves.  225;    Canedy  v.  Marcy,  13   Gray,  373 
Brown  v.    Lamphear,  35   Vt.    252;    Green    v.    Morris,  1   Beasley,  170 
Richardson  v.  Bleight,  8  B.  Mon.  580;  Whaley  v.  Eliot,  1  A.  K.  Marsh 
343;   Belknap  v.  Scaley,  2  Duer,  570;    Gray  v.  Woods,  4  Blackf.   432; 
Peters  v.  Goodrich,  3  Conn.  146;  Oliver  t'.  Tns.  Co.,  2  Curtis,  277;  Tilton 
V.  Tilton,  9  N.  H.  385;  Farley  v.  Bryant,  32  Me.  474  ;  Loss  v.  Obry,  7  C. 
E.  Green,  52.  a  Lide  v.  Law,  27  Kans.  242. 

*  Sawyer  v.  Hovey,  3  Allen,  331 ;  Gillespie  v.  Moore,  2  Johns.  Ch.  585; 
Andrews  v.  Essex  Ins.  Co.,  3  Mason,  10;  1  Story's  Eq.  Jur.  §  157. 

^  Andrews  v.  Essex  Lis.  Co.,  3  Mason,  10;  Bradford  v.  Romney,  30 
Beav.  431. 
232 


CHAP.  VI.]  INADEQUACY  OP   CONSIDERATION.  [§  187. 

parties  may  be  restored  to  their  original  situation. ^  But 
fraud  on  one  party  and  mistake  on  the  side  of  the  other  is  a 
good  cause  for  setting  aside  a  transaction.^ 

§  187.  Lord  Hardwicke,  in  his  analysis  of  the  various 
kinds  of  fraud,  stated  one  species  to  be  "  fraud  apparent 
from  the  intrinsic  value  and  subject  of  the  bargain,  such  as 
no  man  in  his  senses,  and  not  under  delusion,  would  make 
on  the  one  hand,  and  as  no  honest  or  fair  man  would  accept 
on  the  other."  ^  The  meaning  of  this  is,  that  fraud  may  be 
proved  by  the  inadequacy  of  the  consideration  paid  for  prop- 
erty by  the  purchaser  on  the  one  hand,*  or  the  consideration 
may  be  so  extravagantly  large  on  the  other,^  as  to  show  that 
the  purchaser  was  imposed  upon.  It  is  to  be  observed,  how- 
ever, that  the  consideration  alone,  whether  too  large  or  too 
small,  cannot  of  itself  prove  fraud  in  a  transaction,  for  the 
reason  that  a  mere  voluntary  conveyance,  without  any  con- 
sideration, is  good  and  valid  between  the  parties.  On  the 
same  ground  mere  inadequacy  of  consideration  will  not  vitiate 
a  deed,^  and  so  if  a  party,  knowing  that  the  consideration  is 

1  Garrard  v.  Fanchell,  30  Beav.  445;  Harris  v.  Pepperell,  L.  R.  5  Eq.  1. 

'^  Bloodgood  V.  Sears,  64  Barb.  76;  Welles  v.  Yates,  44  N.  Y.  525. 

8  Chesterfield  v.  Janssen,  2  Ves.  155;  Harvey  v.  Mount,  8  Beav.  439. 

*  Ibid. ;  Rosevelt  v.  Fulton,  2  Cow.  129 ;  McDonald  v.  Neilson,  2  Cow. 
139. 

»  Cockell  V.  Taylor,  15  Beav.   103. 

6  Pickett  V.  Loggon,  14  Ves.  215;  Reynell  v.  Sprye,  8  Hare,  222;  1  De 
G.,  M.  &  G.  600;  Howard  v.  Edgell,  17  Vt.  9;  Osgood  v.  Franklin,  2 
Johns.  Ch.  1;  14  Johns.  527;  Butler  u.  Haskell,  4  Des.  651;  Erwiu  v. 
Perham,  12  How.  197;  Judge  v.  Wilkins,  19  Ala.  765;  McCormick  v. 
Malin,  5  Blackf.  509;  Delafield  v.  Anderson,  7  S.  &  M.  630;  Farmers' 
Bank  v.  Douglass,  11  S.  &  M.  469;  Robinson  v.  Robinson,  4  Md.  Ch.  183; 
Powers  V.  Hale,  5  Foster,  145;  Dun  v.  Chambers,  4  Barb.  376;  ]\Iann  v. 
Betterly,  21  Vt.  326;  Green  v.  Thompson,  2  Ired.  Eq.  365;  White  v. 
Flora,  2  Overt.  426;  Forde  v.  Herron,  4  Munf.  316;  Holmes  v.  Fre.sh,  9 
Miss.  201;  Young  v.  Frost,  5  Gill,  287;  Coster  v.  Griswold,  4  Edw.  364; 
Westervelt  v.  Matheson,  1  Hoff.  37;  Davidson  v.  Little,  27  Pa.  St.  251; 
Coles  V.  Trecothick,  9  Ves.  246  ;  Moth  v.  Atwood,  5  Ves.  845  ;  White  v. 
Damon,  7  Ves.  35;  Low  v.  Barchard,  8  Ves.  133;  Griffith  v.  Spratley,  2 
Bro.  Ch.  179  ;  Wood  v.  Abrey,  3  INladd.  423 ;  Floyer  v.  Sherrard,  Amb. 
18 ;  Stephens  v.  Bateman,  1  Bro.  Ch.  22  ;  Harrison  v.  Guest,  6  De  G.,  M. 

233 


§  187.]  CONSTRUCTIVE  TRUSTS.  [CHAP.  VI. 

inadeqiiato,  enters  into  the  agreement  with  his  eyes  open,  he 
cannot  have  relief.^  It  is  only  where  some  fraud  is  practised 
upon  a  party  that  the  consideration  of  a  conveyance  is  ma- 
terial.2  If  it  appears  that  a  person  intended  to  convey  his 
property  for  a  consideration  reasonably  proportionate  to  its 
value,  but  that  in  fact  the  consideration  received  was  grossly 
inadequate,  then  a  court  of  equity  would  infer  that  some  fraud 
or  deceit  had  been  practised  upon  him  ;  ^  or  as  Lord  Thurlow 
said,  "  where  the  inadequacy  of  the  consideration  is  so  gross 
and  manifest  that  it  is  impossible  to  state  it  to  a  man  of  com- 
mon sense  without  producing  an  exclamation  at  the  inequality 
of  it,*  the  court  will  infer  from  that  fact  alone,  that  there 
must  have  been  such  imposition  or  oppression  in  the  trans- 
action, or  such  a  want  of  common  understanding  in  the  party, 
as  to  amount  to  a  case  of  fraud,  from  which  no  advantage  or 
benefit  ought  to  be  derived  by  the  other  party."  °  Other 
authorities  say  that  courts  will  act  on  the  fact  alone  of  in- 
adequacy of  consideration  when  it  is  so  gross  and  manifest  as 
to  shock  the  conscience.^     This  principle  is  loose  enough,'^  if  it 

&  G.  424;  8  H.  L.  Cas.  481;  Denton  v.  Donner,  23  Beav.  285;  Eyre  v. 
Potter,' 1.5  How.  60;  Chaires  v.  Brady,  10  Flor.  133. 

1  Willis  V.  Jernegan,  2  Atk.  251. 

2  Huguenin  v.  Baseley,  14  Ves.  273 ;  Wormack  v.  Rogers,  9  Ga.  60 ; 
How  V.  Weldon,  2  Ves.  516 ;  Mann  v.  Betterly,  21  Vt.  326. 

3  Gwynne  v.  Heaton,  1  Bro.  Ch.  8;  Bangh  v.  Price,  3  Wilson,  320; 
Eyre  v.  Potter,  15  How.  60;  Butler  r.  Haskell,  4  Des.  652;  Barnett  v. 
Spratt,  4  Ired.  Eq.  171 ;  Wright  v.  Wilson,  4  Yei-g.  294  ;  Juzan  v.  Toul- 
min,  9  Ala.  692. 

*  Gwynne  v.  Heaton,  1  Bro.  Ch.  8;  Hamet  v.  Dundass,  4  Barr,  178. 

^  Heathcote  v.  Paignon,  2  Bro.  Ch.  175;  Uuderhill  v.  Horwood,  10 
Ves.  219  ;  Ware  v.  Horwood,  14  Ves.  28;  Stilwell  v.  Wilkinson,  Jac.  282; 
Barnett  v.  Spratt,  4  Ired.  Eq.  171. 

6  Horsey  v.  Hough,  38  Md.  130;  Coles  v.  Trecothick,  9  Ves.  246; 
Osgood  V.  Franklin,  2  Johns.  Ch.  1;  14  Johns.  527;  Gwynne  v.  Heaton, 
1  Bro.  Ch.  9;  Underbill  v.  Horwood,  10  Ves.  209;  Peacock  v.  Evans,  16 
Ves.  512;  Wright  v.  Wilson,  2  Yerg.  294;  Deaderick  v.  W^atkins,  8 
Humph.  520;  Stilwell  v.  Wilkinson,  Jac.  280;  Copis  v.  Middleton,  2 
Madd.  409;  Howard  v.  Edgell,  17  Vt.  9;  Butler  v.  Haskell,  4  Des.  652; 
Eyre  v.   Potter,  15  How.   60;  Gist  v.  Frazier,  2  Litl.  118;   Seymour  v. 


'  Gibson  v.  Jeyes,  6  Ves.  273;  Warfield  v.  Boss,  38  Md.  85. 
234 


CHAP.  VI.]  CONTRACTS   WITH    HEIRS.  [§  188. 

is  a  principle,  and  of  course  every  case  would  depend  upon  its 
own  facts  and  circumstances.  Where  there  are  suspicious 
circumstances  connected  with  the  fact  of  inadequacy  of  price, 
as  where  the  parties  stand  in  a  fiduciary  relation  to  each 
other,!  or  one  of  them  is  in  distress,^  or  is  ignorant,^  or  is 
weak-minded  and  imbecile,*  inadequacy  of  consideration  will 
become  very  pertinent,  and  oftentimes  conclusive  evidence 
that  fraud  and  undue  influence  have  been  used  to  bring  about 
a  bargain  advantageous  to  the  one  side  and  ruinous  to  the 
other. 

§  188.  Immediately  connected  with  this  subject  is  the  sale 
by  an  heir  or  reversioner  of  his  expectancy  or  reversionary 
interest.  It  is  said  that  "  it  is  incumbent  upon  those  who 
deal  with  an  expectant  heir,  relative  to  his  reversionary 
interest,  to  make  good  the  bargain ;  that  is,  to  be  able  to 
show  that  a  full  and  adequate  consideration  was  paid.  In 
all  such  cases  the  issue  is  upon  the  adequacy  of  the  price. 
No  proof  of  fraud  is  necessary ;  and  the  relief  is  given  upon 
general  principles  of  mischief  to  the  public,  without  requiring 
particular  evidence  of  actual  imposition."  ^     Such  a  purchase 

Delancy,  6  Johns.  Ch.  222;  Juzan  v.  Toulmin,  9  Ala.  692;  James  v. 
Morgan,  1  Lev.  Ill;  Rice  v.  Gordon,  11  Beav.  215;  Booker  v.  Anderson, 
35  111.  66. 

1  Heme  v.  Meeres,  1  Vern.  456;  Gibson  ik  Jeyes,  6  Ves.  266;  Shaeffer 
r.  Sleade,  7  Blackf.  178;  Brooke  v.  Berry,  2  Gill,  83;  Wright  v.  Wilson,  2 
Yerg.  291;  Butler  v.  Haskell,  4  Des.  680. 

2  Cockell  V.  Taylor,  15  Beav.  103;  Warfield  v.  Ross,  38  Md.  85. 

8  Heme  v.  Meeres,  1  Vern.  456;  Pickett  v.  Loggon,  14  Ves.  215;  Mur- 
ray V.  Palmer,  2  Sch.  &  Lef.  477  ;  Gwynne  v.  Heaton,  1  Bro.  Ch.  1;  Wood 
V.  Abrey,  3  Madd.  417;  McKinney  v.  Pinkard,  2  Leigh,  149;  Gasque  v. 
Small,  2  Strob.  Eq.  72;  Esham  v.  Lamar,  10  B.  Mon.  43 ;  Butler  v.  Has- 
kell, 4  Des.  680;  Cookson  v.  Richardson,  69  111.  137. 

*  Clarkson  v.  Hanway,  2  P.  Wms.  203;  Gartside  v.  Isherwood,  1  Bro. 
Ch.  558;  Stanhope  v.  Toppe,  2  Bro.  P.  C.  183;  McArtee  i'.  Eiigart,  13  111. 
242;  Wormack  v.  Rogers,  9  Ga.  60;  How  v.  Weldon,  3  Ves.  517;  Addis 
V.  Ca,mpbell,  4  Beav.  401;  Holden  v.  Crawford,  1  Atk.  390;  Mann  v.  Bet- 
terley,  21  Vt.  326;  Crane  y.  Conklin,  Saxt.  346;  Brooke  v.  Berry,  2  Gill, 
83;  Rumph  v.  Abercrombie,  12  Ala.  64. 

6  Sir  Wm.  Grant,  in  Gowland  v.  De  Faria,  17  Ves.  20. 

235 


§  188.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

is  a  constructive  fraud,  and  the  purchaser,  if  a  stranger,  will 
be  compelled  to  account  and  to  give  up  the  bargain,  if  found 
to  be  advantageous.^  A  sale  by  an  heir  will  not  be  supported 
against  him  unless  it  is  perfectly  fair  in  every  respect,  and 
beyond  suspicion,  and  for  an  adequate  price.^  The  burden  is 
upon  the  purchaser  to  show  the  fairness  of  the  transaction 
and  the  sufficiency  of  the  consideration,  and  not  upon  the  heir 
to  impeach  either  the  one  or  the  other ;  ^  and  it  is  said  that  it 
is  immaterial  that  the  heir  is  of  mature  age."^  In  this  country 
the  rule  may  be  stated  with  still  more  severity,  that  the  sale, 
by  an  heir,  of  his  expectancy  during  the  life  of  the  ancestor, 
is  contrary  to  public  policy  and  is  void,  unless  such  sale  is 
assented  to  by  the  ancestor,  and  supported  by  an  adequate 
consideration.^  If,  however,  the  sale  is  at  auction,  it  will  be 
some  proof  of  fairness  and  sufficiency  of  price,^  and  if  the  sale 
is  made  with  the  knowledge  and  assent  of  the  ancestor  it  will 

1  Jenkins  v.  Pye,  12  Pet.  258;  Call  v.  Gibbons,  3  P.  Wins.  290;  Bar- 
nardiston  v.  Lingood,  2  Atk.  133;  Gwynue  v.  Heaton,  1  Bro.  Cli.  10; 
Walmesley  v.  Booth,  2  Atk.  28. 

2  Knott  V.  Hill  1  Vern.  167;  Westerfield  v.  Janssen,  2  Yes.  125;  1 
Lead.  Ca.  Eq.  428-494,  Eng.  and  Am.  notes;  Bawtree  v.  Watson,  3  M.  & 
K.  339  ;  Portmore  r.  Taylor,  4  Sim.  182;  Peacock  v.  Evans,  16  Yes.  512 ; 
Newton  v.  Hunt,  5  Sim.  54;  Foster  v.  Roberts,  29  Beav.  467;  Talbot  v. 
Staniforth,  1  John.  &  H.  484;  Jones  v.  Ricketts,  31  Beav.  130;  Salter  v. 
Bradshaw,  26  Beav.  161;  King?;.  Hamlet,  4  Sim.  223;  2  M.  &  K.  456; 
Denton  v.  Donner,  23  Beav.  285 ;  Bury  v.  Oppenheim,  26  Beav.  594;  Han- 
nah V.  Hodgson,  30  Beav.  19;  St.  Albyn  v.  Harding,  27  Beav.  11;  Nesbitt 
V.  Berridge,  32  Beav.  282;  Perfect  v.  Lane,  31  L.  J.  Ch.  489;  Edwards  v. 
Burt,  2  De  G.,  M.  &  G.  55;  Aldborough  v.  Frye,  7  CI.  &  Fin.  436. 

8  Gowland  v.  De  Faria,  17  Yes.  24;  Coles  v.  Trecothick,  9  Yes.  246; 
Davis  V.  Marlborough,  2  Swanst.  141;  Portmore  v.  Taylor,  4  Sim.  209; 
Shelley  v.  Nash,  3  Madd.  236;  Nimmo  v.  Davis,  7  Tex.  260;  Poor  v. 
Hazleton,  15  N.  H.  564.  . 

*  Davis  V.  Marlborough,  2  Swanst.  146;  Evans  v.  Cheshire,  Belt,  Supp. 
305;  Addis  v.  Campbell,  4  Beav.  401. 

^  Yarick  i'.  Edwards,  1  Hoff.  383;  Boynton  v.  Hubbard,  7  Mass.  112; 
Fitch  V.  Fitch,  8  Pick.  480;  Trull  v.  Eastman,  3  Met.  121;  Poor  v.  Hazle- 
ton, 15  N.  H.  564 ;  Nimmo  v.  Davis,  7  Tex.  266 ;  Jenkins  v.  Pye,  12  Pet. 
257 ;  Davidson  v.  Little,  22  Pa.  St.  252. 

6  Fox  V.  Wright,  6  Madd.  Ill  ;  Shelley  v.  Nash,  3  Madd.  232;  New- 
man V.  Meek,  1  Freem.  Ch.  441;  Erwin  v.  Parham,  12  How.  197. 
236 


CHAP.  VI.]  MENTAL   WEAKNESS.  [§  189. 

be  good.i  But  it  seems  that  the  rule  is  confined  to  those 
expectancies  that  combine  the  relation  of  heir  with  that  of 
remainder-man  and  reversioner.  If  the  expectant  is  not  heir, 
but  is  simply  entitled  to  a  remainder  or  reversion  by  virtue  of 
some  instrument  or  settlement,  he  may  sell  and  assign  his 
future  interest,  and  such  sale  will  not  be  avoided  unless  some 
of  the  common  rules  of  equity  are  violated  by  the  purchaser. 
In  such  cases  there  is  no  fraud  upon  parents  or  third  persons, 
consequently  there  is  nothing  contrary  to  public  policy  in 
such  purchases.^ 

§  189.  Another  kind  of  constructive  trust  arises  from  the 
mental  incapacities  of  parties  to  enter  into  contracts.  Thus 
a  non  compos  mentis  cannot  make  a  binding  contract.^  The 
deed  of  such  person  is  either  absolutely  void,  or  at  least 
voidable,*  and  equity  will  give  relief  by  declaring  a  party 
taking  under  such  a  conveyance  to  be  a  trustee,  and  by  order- 

J  Fitch  V.  Fitch,  8  Pick.  480;  Trull  v.  Eastman,  3  Met.  121 ;  Nimmo 
V.  Davis,  7  Tex.  266  ;  King  v.  Hamlet,  2  M.  &  K.  456.  In  Ohio,  however, 
it  has  been  held  that  a  contract  is  invalid  by  which  a  son  released  to  his 
father,  in  consideration  of  an  advancement,  all  his  expectancies  upon  the 
father's  estate.  Needles  v.  Needles,  7  Ohio  St.  432.  The  case  is  not 
sustained  by  other  authorities,  and  seems  not  to  rest  upon  the  principles 
applicable  to  such  transactions. 

^  Cribbins  v.  Markwood,  13  Grat.  495 ;  Dunn  v.  Chambers,  4  Barb. 
376;  Davidson  v.  Little,  22  Pa.  St.  252  ;  Wiseman  v.  Beake,  2  Vern.  121 ; 
Cole  V.  Gibbons,  3  P.  Wms.  290;  Barnardiston  i-.  Lingood,  2  Atk.  133; 
Bowers  v.  Heaps,  3  V.  &  B.  117;  Davis  v.  Marlborough,  2  Swanst.  130 ; 
Addis  V.  Campbell,  4  Beav.  401 ;  Nickolls  v.  Gould,  2  Ves.  422 ;  Henley 
V.  Axe,  2  Bro.  Ch.  17;  2  Swanst.  141 ;  Griffith  v.  Spratley,  2.Bro.  Ch.  179  ; 
1  Cox,  383 ;  INIoth  v.  Atwood,  5  Ves.  845 ;  Montesquieu  v.  Sandys,  18 
Ves.  302.  The  peculiar  character  and  position  of  sailors  call  for  the  in- 
terposition of  courts  when  they  are  defrauded,  and  when  one  had  sold  his 
prize-money  for  a  small  sum,  the  Master  of  the  Rolls  said  that  it  was 
reasonable  to  regard  them  as  young  heirs,  and  to  relieve  them  accordingly. 
How  V.  Weldon,  2  Ves.  515. 

*  Chesterfield  v.  Janssen,  2  Ves.  155. 

*  Allis  V.  Billings,  6  Met.  415;  Breckenridge  v.  Ormsby,  1  J.  J.  Marsh. 
239;  Price  v.  Berrington,  3  Mac.  &  G.  486;  Molton  v.  Camroux,  2  Exch. 
487;  4  Exch.  17;  De  Silver's  Est.,  5  Rawl.  Ill ;  Bensell  v.  Chancellor,  5 
Whart.  376;  Beals  v.  Lee,  10  Barr,  56. 

237 


§  189.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

ing  him  to  execute  a  reconveyance.^  Whether  a  person  has 
capacity  enough  to  make  a  contract,  is  always  a  question  of 
fact  in  each  particular  case  ;  for  mere  weakness  of  mind,  not 
amounting  to  idiocy  or  insanity,  is  no  ground  for  avoiding  a 
contract.  Courts  cannot  measure  the  extent  of  a  party's 
understanding.  If,  therefore,  a  person  is  not  an  idiot  nor  an 
insane  person,  he  may  enter  into  contracts,  although  he  may 
be  of  a  low  order  of  intelligence  and  of  weak  reasoning 
powers.^  At  the  same  time  such  persons  are  easily  imposed 
upon  and  defrauded ;  and  if  it  appears  that  one  of  the  parties 
to  a  contract  is  of  weak  mind  and  feeble  powers,  the  whole 
transaction  will  be  carefully  investigated,  and  the  conduct  of 
the  person  procuring  such  contract  will  be  closely  scrutinized; 
for  arts  and  practices  that  would  be  perfectly  harmless  in  a 
transaction  with  a  man  of  high  intelligence  and  prudence 
and  great  power  of  observing  and  reasoning,  may,  and  prob- 
ably would,  deceive  and  mislead  a  person  of  weak  mind  and 
feeble  powers,  although  not  incapable  of  entering  into  contracts 
and  transacting  business  generally .^  Therefore  the  weakness 
of  a  party's  mind  is  a  very  material  fact  in  determining  the 
character  of  a  transaction,  and  if,  in  contracts  with  such 
persons,  there  is  found  the  least  art  or  stratagem,  or  any 
undue  influence,  or  any  ingredient  of  fraud  or  suspicion  of 
unfairness,  courts  will  set  the  contract  aside,  or  convert  the 

1  Rushloy  V.  Mansfield,  Toth.  42,  Mansfield's  Case,  12  Co.  123;  Ad- 
dison V.  Mascall,  2  Yern.  678;  3  Atk.  110;  Price  v.  Berrington,  7  Hare, 
394;  3  Mac.  &  G.  486;  Addison  v.  Dawson,  2  Vern.  678;  Welby  v.  Welby, 
Toth.  164;  Wright  v.  Booth,  Id.  166;  Wilkinson  v.  Brayfield,  2  Vern. 
307;  Clark  v.  Ward,  Pr.  Ch.  150,  Ferres  v.  Ferres,  Eq.  Ab.  695;  Attorney- 
General  1'.  Parnther,  3  Bro.  Ch.  441. 

2  Osmond  v.  Fitzroy,  3  P.  Wms.  130:  Willis  v.  Jernegan,  2  Atk.  251 ; 
1  Story's  Eq.  Jur.  §  235;  Ex  parte  Allen,  15  Mass.  58;  Hadley  r.  Latimer, 
3  Yerg.  537;  Mann  v.  Betterley,  21  Yt.  326;  Thomas  v.  Sheppard,  2  Mc- 
Cord,  Eq.  36;  Piippy  v.  Gant,  4  Ired.  Eq.  447;  Mason  v.  Williams,  3 
Munf.  126;  Morrison  v.  McLeod,  2  Dev.  &  Bat.  Eq.  221;  Green  v.  Thomp- 
son, 2  Ired.  Eq.  365;  Bath  &  Montague's  Ca.,  3  Ch.  Ca.  107. 

3  Bridgman  v.  Green,  Wilm.  61;  2  Yes.  627;  Donnegal's  Case,  Id. 
407;  Gartside  v.  Isherwood,  1  Bro.  Ch.  560;  Blackford  e.  Christian,  1 
Knapp,  77;  Dunn  v.  Chambers,  4  Barb.  376;  Clark  v.  Malpas,  4  De  G., 
F.  &  J.  401. 

238 


CHAP.  VI.]  MENTAL  WEAKNESS.  [§  190. 

offending  party  into  a  trustee. ^  Upon  these  principles,  if  the 
contract  is  of  an  unusual,  unreasonable,  or  extraordinary 
character,^  or  if  it  is  without  consideration,  or  upon  an  in- 
adequate consideration,^  or  if  the  instrument  falsely  recites  a 
consideration,^  or  if  there  is  actual  proof  of  undue  influence, 
or  of  art  or  circumvention,^  or  if  there  is  a  fiduciary,  con- 
fidential, or  influential  relation  between  the  parties,^  courts 
will  interfere  and  protect  a  person  of  weak  mind  from  his 
contracts. 

§  190.  Mental  weakness  is  not  of  itself  a  sufficient  ground 
for  avoiding  an  agreement,  but  it  must  appear  that  some  ad- 
vantage was  taken  of  it  to  procure  a  favorable  contract ;  and 
if  the  other  party  stood  in  some  fiduciary  relation  to  the  per- 
son of  weak  mind,  the  burden  is  upon  him  to  show  that  the 
contract  was  in  every  respect  fair,  and  that  no  advantage  was 

1  Griffin  v.  De  Veulle,  3  Wood.  Lect.  App.  16 ;  Nottige  v.  Prince,  2 
Gif.  246;  Longmate  v.  Ledger,  Id.  157;  Baker  v.  Monk,  33  Beav.  419 
Boyse  v.  Rossborough,  6  H.  L.  Ca.  2 ;  Harding ;;.  Handy,  11  Wheat.  103 
Tracey  v.  Sackett,  1  Ohio  St.  54;  Whitehorn  v.  Hines,  1  Munf.  557 
Whelan  v.  Whelan,  3  Cow.  537;  Deatly  v.  Murphy,  3  A.  K.  Marsh.  472 
Brogden  v.  Walker,  2  H.  &  J.  285;  Rumph  v.  Abercrombie,  12  Ala.  G4. 

2  Fane  v.  Devonshire,  2  Bro.  P.  C.  77;  Bridgman  v.  Green,  2  Ves.  627; 
Dent  V.  Bennett,  7  Sim.  539;  4  M.  &  Cr.  629;  Malin  v.  Malin,  2  Johns. 
Ch.  238;  Bennett  v.  Vade,  2  Atk.  235;  Nantes  v.  Corrock,  9  Ves.  181; 
Willan  V.  Willan,  16  Ves.  72 ;  Ball  v.  Maurice,  3  Bligh  (n.  s.),  1 ;  1  Dow 
(n.  s.),  392. 

8  Ibid. ;  Clarkson  v.  Hanway,  2  P.  Wms.  203 ;  Gartside  v.  Isherwood, 
1  Bro.  Ch.  558;  Hutchinson  v.  Tindall,  2  Green,  Ch.  357;  Rumph  v.  Aber- 
crombie, 12  Ala.  64;  Fillmer  v.  Gott,  7  Bro.  P.  C.  70;  Hunt  v.  Moore,  2 
Barr,  105. 

4  tJibson  V.  Russell,  2  IST.  C.  C.  104;  Harvey  v.  Mount,  8  Beav.  439. 

6  Portington  v.  Eglington,  2  Vern.  189 ;  Gartside  v.  Isherwood,  1  Bro. 
Ch.  558;  Bridgman  v.  Green,  2  Ves.  627;  Edmunds  v.  Bird,  1  V.  &  B. 
542 ;  Fox  v.  Mackreth,  2  Bro.  Ch.  420. 

*  Kennedy  v.  Kennedy,  2  Ala.  571 ;  Brice  v.  Brice,  5  Barb.  533 ;  Buf- 
falow  V.  Buffalow,  2  Dev.  &  Bat.  Eq.  241 ;  Osmond  v.  Fitzroy,  3  P.  Wms. 
130;  Dent  v.  Bennett,  7  Sim.  539;  4  M.  &  C.  269;  Cruise  v.  Christopher, 
5  Dana,  181;  Whipple  v.  Clure,  2  Root,  216;  Brooke  v.  Berry,  2  Gill,  83  ; 
McCraw  v.  Davis,  2  Ired.  Eq.  618;  Huguenin  v.  Baseley,  14  Ves.  273; 
Griffith  V.  Robins,  3  Madd.  191;  Whelan  v.  Whelan,  3  Cow.  537. 

239 


§  191.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

obtained  from  the  influential  position  on  the  one  hand,  or  from 
the  feebleness  of  mind  on  the  other.  And  it  is  quite  imma- 
terial from  whence  the  mental  weakness  arises.  It  may  arise 
from  a  natural  and  permanent  imbecility  of  mind,  or  it  may 
arise  from  some  temporary  illness  or  debility,  or  from  the 
weakness  and  infirmity  of  extreme  old  age.  Each  case  must 
depend  upon  its  own  circumstances.  If  there  is  a  fixed  and 
permanent  state  of  idiocy  or  insanity,  or  if  the  party  is  a 
declared  lunatic  and  his  affairs  are  in  the  hands  of  a  commit- 
tee or  of  a  guardian,  there  can  be  little  or  no  doubt.  Ques- 
tions generally  arise  where  there  is  not  this  entire  want  of 
capacity,  —  where  no  general  rule  can  be  laid  down,  but  the 
court  is  left  to  judge  of  the  capacity  of  the  contracting  party, 
of  the  circumstances  under  which  the  contract  was  made,  and 
whether  from  all  the  facts  in  the  case  the  contract  ought  in 
equity  and  good  conscience  to  be  sustained.  Extreme  old 
age,  accompanied  by  great  infirmity ;  or  extreme  weakness 
and  feebleness  of  mind,  arising  from  temporary  illness  or  per- 
manent imbecility,  stopping  short  of  absolute  incapacity,  — 
are  all  pertinent  facts,  tending  to  show,  if  accompanied  by 
other  circumstances,  a  fraudulent  contract ;  but  if  upon  all 
the  evidence  the  contract  is  a  fair  one,  if  the  enfeebled  person 
is  surrounded  by  his  friends,  who  understand  the  transaction 
and  explain  it  to  the  party,  it  will  not  be  set  aside.^ 

§  191.  Substantially  the  same  rules  apply  to  deeds  and  in- 
struments executed  by  a  drunken  person.  Drunkards,  while 
laboring  under  the  frenzy  of  drink,  are  non  compotes  mentis  by 
their  own  act,^  and  it  is  said  that  they  may  plead  no7i  est  fac- 
tum to  a  deed  executed  while  so  drunk  that  they  do  not 
know  what  they  are  doing.^    In  such  case  there  can  of  course 

1  Griffith  V.  Eobins,  3  Madd.  191;  Harding  v.  Handy,  11  Wheat.  193; 
Dent  V.  Bennett,  7  Sim.  539 ;  Attorney-General  v.  Parnther,  3  Bro.  Ch. 
443;  Hunter  v.  Atkins,  3  M.  &  K.  146;  Lewis  v.  Bead,  1  Ves.  Jr.  19; 
Pratt  V.  Barker,  1  Sim.  1 ;  4  Russ.  507;  Rippy  v.  Gant,  4  Ired.  Eq.  447; 
Gratz  V.  Cohen,  11  How.  1. 

2  Co.  Litt.  247  a,  447  a;  Beverley's  Case,  4  Co.  124,  Hendrick  v.  Hop- 
kins, Gary,  93. 

8  Cole  V.  Robins,  Bull.  N.  P.  172;  Cook  v.  Clayworth,  IS  Ves.  12; 
240 


CHAP.  VI.]  DRUNKENNESS  —  DURESS.  [§  192. 

be  no  intelligent  consent  to  any  contract.  But  equity  will  not 
always  interfere  to  protect  a  drunken  man  from  the  folly  of 
his  own  acts,  and  will  not,  on  account  of  drunkenness  alone, 
set  aside  a  contract  or  convert  the  other  party  into  a  trustee.^ 
And  this  is  more  especially  the  rule  where  the  object  of  the 
contract  is  to  carry  out  a  family  settlement,  or  the  contract  is 
fair  and  reasonable  in  its  terms.^  But  if  there  is  any  contriv- 
ance or  management  to  induce  drunkenness  and  to  procure  a 
contract,  or  if  there  was  any  unfair  advantage  taken  of  the 
drunkenness  to  procure  a  contract,  it  would  be  an  actual  fraud, 
and  the  court  will  not  allow  a  party  to  retain  any  advantage 
procured  in  such  manner,  nor  would  it  lend  its  aid  to  carry  it 
into  effect.^ 

§  192.  So,  equity  will  relieve  in  all  cases  of  contracts  pro- 
cured by  duress,  or  fear,  or  apprehension  ;  for  if  there  has 
been  any  restraint  upon  a  person's  freedom  to  consent  or  dis- 
sent, or  any  practice  upon  his  fears,  it  is  a  kind  of  fraud,  and 
no  one  ought  to  enjoy  an  advantage  gained  in  such  manner.* 

Reynolds  v.  Waller,  1  Wash.  212;  Rutherford  v.  Ruff,  4  Des.  350;  Gore 
V.  Gibson,  13  M.  &  W.  623;  Barrett  v.  Buxton,  2  Ark.  167;  Peyton  v. 
Rawlins,  1  Hayw.  77;  Clifton  v.  Davis,  1  Pars.  Eq.  31;  French  v.  French, 
2  Ham.  214;  Wigglesworth  v.  Steers,  1  Hen.  &Munf.  70;  Shaw  u.  Thack- 
ray,  1  Sm.  &  Gif.  537. 

1  Johnson  v.  Meddlicott,  3  P.  Wms.  131,  n. ;  Cory  v.  Cory,  1  Ves.  19; 
Nagle  V.  Bayler,  2  Dr.  &  W.  60;  Cooke  v.  Clayworth,  18  Ves.  12;  Max- 
well V.  Pittinger,  2  Green,  Ch.  156  ;  Morrison  v.  McLeod,  2  Dev.  &  Bat. 
Eq.  221;  Whitesides  v.  Greenlee,  2  Dev.  Eq.  152;  Moore  v.  Read,  2  Ired. 
Eq.  580;  Hotchkiss  v.  Fortson,  7  Yerg.  67;  Belcher  v.  Belcher,  19  Yerg. 
121;  Hutchinson  v.  Brown,  1  Clark,  Ch.  408;  Harbison  v.  Lemon,  3 
Blackf.  51. 

2  Cory  V.  Cory,  1  Ves.  19;  Cooke  v.  Clayworth,  18  Ves.  12. 

8  Johnson  v.  Meddlicott,  3  P.  Wms.  131;  Say  v.  Barwick,  1  V.  &  B. 
195;  Jenness  v.  Howard,  6  Blackf.  240;  Cory  v.  Cory,  1  Ves.  19;  Cooke 
V.  Clayworth,  18  Ves.  12;  Crane  i\  Conklin,  Saxt.  346;  Calloway  c. 
Wetherspoon,  5  Ired.  Eq.  128;  Hutchinson  v.  Tindall,  2  Green,  Ch.  128; 
Phillips  V.  Moore,  11  Miss.  600;  Cooley  v.  Rankin,  Id.  642;  Craggv. 
Holme,  18  Ves.  14,  n. ;  Shiers  v.  Higgons,  1  Madd.  Ch.  Pr.  399;  Nagle  r. 
Baylor,  2  Dr.  &  W.  64;  Shaw  v.  Thackray,  1  Sm.  &  Gif.  5-37. 

*  Attoi-ney-General  v.  Sothen,  2  Vern.  497 ;  Crowe  v.  Ballard,  1  Ves. 
Jr.  220;  Anon.,  3  P.  Wms.  29,  n.  (e)  ;  Gist  v.  Frazier,  2  Lit.  118;  Evans 
V.  Llewellyn,  1  Cox,  340;  Hawes  v.  Wyatt,  3  Bro.  Ch.  158. 

VOL.  I.  — 16  241 


§  194.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

Thus,  if  a  contract  is  made  with  one  in  prison,  or  under 
any  circumstances  of  oppression,  equity  will  scrutinize  it 
with  great  care.^  And  so,  if  advantage  is  taken  of  the  ex- 
treme distress  or  necessity  of  a  party,  to  obtain  a  favorable 
bargain  from  him,  equity  will  give  relief  ;^  but  the  advantage 
must  have  been  within  the  contemplation  of  the  parties  at  the 
time. 

§  193.  Of  course,  if  two  or  more  of  these  suspicious  circum- 
stances are  found  in  the  same  case  ;  as,  if  property  is  obtained 
from  a  person  of  weak  mind,  or  under  duress,  or  in  great  dis- 
tress, for  a  grossly  inadequate  consideration,  or  upon  any  un- 
usual, extraordinary,  or  oppressive  terms,  the  evidence  would 
be  much  stronger  of  some  fraudulent  practice,  and  would  call 
upon  the  suspected  party  for  a  very  complete  vindication  of 
the  transaction,  or  he  would  be'  converted  into  a  trustee.^ 

§  194.  Lord  Hardwicke's  "  third  species  of  fraud  may  be 
presumed  from  the  circumstances  and  condition  of  the  parties 
contracting  ;  and  this  goes  further  than  the  rule  of  law,  which 
is,  that  fraud  must  be  proved,  not  presumed."  *  At  law, 
fraud  must  be  proved  ;  but  in  equity  there  are  certain  rules 
prohibiting  parties  bearing  certain  relations  to  each  other 
from  contracting  between  themselves ;  and  if  parties  bearing 

1  Attorney-General  v.  Sothen,  2  Vern.  497 ;  Roy  v.  Beaufort,  2  Atk. 
190;  Falkner  v.  O'Brien,  2  B.  &  B.  2U;  Underbill  v.  Horwood,  10  Ves. 
209;  Nicholls  v.  Nicholls,  1  Atk.  409;  Griffith  v.  Spratley,  1  Cox,  333; 
Hinton  v.  Hinton,  2  Ves.  634. 

2  (^ould  V.   Okeden,  3  Bro.  P.  C.  560;  Harvey  v.  Mount,  8  Beav.  439 
Hawes  v.  Wyatt,  3  Bro.  Ch.  156  ;  Bosanquet  v.  Dashwood,  Ca.  t.  Talb.  37 
Pickett  V.  Loggon,  14  Ves.  215;  Farmer  r.  Farmer,  1  H.  L.  Ca.  724 
Fitzgerald  v.  Rainsford,  1  B.  &  B.  37 ;  Underbill  v.  Horwood,  10  Ves.  209 
Huguenin  v.  Baseley,  14  Ves.  273;  Carpenter  v.  Elliott,   2  Ves.  494 
Proof  V.  Hines,  Ca.  t.  Talb.  Ill;  Basy  v.  Magrath,  2  Sch.  &  Lef.  31 
Ramsbottom  v.  Parker,  6  Madd.  6;  Wood  v.  Abrey,  3  Madd.  417;  Crowe 
V.  Ballard,  1  Ves.  Jr.  215  ;  Nottige  v.  Prince,  6  Jur.  (n.  s.)  1066 ;  Davis 
V.  McNally,  5  Sneed,  583;  Grabam  r.  Little,  3  Jones,  Eq.  152;  Stewart  r. 
Hubbard,  Id.  186. 

3  Griffin  v.  De  Veulle,  Wood.  Lect.  App.  16. 
*  Cbesterfield  v.  Janssen,  2  Ves.  155. 

242 


CHAP.  VI.]  CONTRACTS    WITH    CESTUI    QUE    TRUST.  [§  195. 

such  relations  enter  into  contracts  with  each  other,  courts  of 
equity  presume  them  to  be  fraudulent,  and  convert  the  fraud- 
ulent party  into  a  trustee.  And  herein  courts  of  equity  go 
further  than  courts  of  law,  and  presume  fraud  in  cases  where 
a  court  of  law  would  require  it  to  be  proved  ;  that  is,  if  parties 
within  the  prohibited  relations  or  conditions  contract  between 
themselves,  courts  of  equity  will  avoid  the  contract  altogether, 
without  proof,  or  they  will  throw  upon  the  party  standing  in 
this  position  of  trust,  confidence,  and  influence,  the  burden  of 
proving  the  entire  fairness  of  the  transaction.  Thus,  if  a 
parent  buys  property  of  his  child,  a  guardian  of  his  ward,  a 
trustee  of  his  cestui  que  trusty  an  attorney  of  his  client,  or  an 
agent  of  his  principal,  equity  will  either  avoid  the  contract 
altogether,  without  proof,  or  it  will  throw  the  burden  of  prov- 
ing the  fairness  of  the  transaction  upon  the  purchaser ;  and, 
if  the  proof  fails,  the  contract  will  be  avoided,  or  the  purchaser 
will  be  construed  to  be  a  trustee  at  the  election  of  the  other 
party.  The  ground  of  this  rule  is,  that  the  danger  of  allow- 
ing persons  holding  such  relations  of  trust  and  influence  with 
others  to  deal  with  them  is  so  great  that  the  presumption 
ought  to  be  against  the  transaction,  and  the  person  holding 
the  trust  or  influence  ought  to  be  required  to  vindicate  it  from 
all  fraud,  or  to  continue  to  hold  the  property  in  trust  for  the 
benefit  of  the  ward,  cestui  que  trust,  or  other  person  holding  a 
similar  relation.^ 

§  195.  These  principles  are  applied  in  their  full  vigor  to 
all  contracts  and  sales  between  trustee  and  cestui  que   trust? 

1  Hoghton   V.    Hoghton,  15   Beav.   278;  Cooke  v.   Lamotte,  Id    234; 
Ahearne  v.  Hogan,  1  Dr.  310;  Espey  v.  Lake,  10  Hare,  260;  Prideaux 


2  Hatch  V.  Hatch,  9  Ves.  296;  Hylton  v.  Hylton,  2  Ves.  549;  Hunter 
V.  Atkins,  3  M.  &  K.  135;  Bulkley  v.  Wilford,  2  CI.  &  Fin.  102;  Far- 
nam  v.  Brooks,  9  Pick.  212;  Boynton  v.  Brastow,  53  Me.  362;  Staats  v. 
Bergen,  2  C.  E.  Green,  554;  Coffee  v.  Ruffin,  4  Cold.  487;  Faucett  v. 
Faucett,  4  Bush,  521;  Korns  v.  Shaffer,  27  Md.  83;  Baltimore  v.  Cald- 
well, 25  Md.  423;  Smith  v.  Townshend,  27  Md.  368;  Colborn  v.  Morton, 
3  Keyes,  266;  Pairo  v.  Vickery,  37  Md.  467;  Wright  r.  Campbell,  27 
Ark.  637. 

243 


§  195.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

The  trustee  is  in  such  a  position  of  confidence  and  influence 
over  the  cestui  que  trust,  that  the  contract  or  bargain  will 
either  be  void  or  he  will  be  a  constructive  trustee,  at  the 
election  of  the  cestui  que  trust,  unless  the  trustee  can  show 
that  the  contract  was  entirely  fair  and  advantageous  to  the 
cestui  que  trust}  The  presumption  is  against  the  transaction. 
If  a  cestui  confess  judgment  or  make  a  deed  to  the  trustee, 
the  burden  is  on  the  latter  to  repel  the  intendment  of  law  that 
there  was  undue  influence.^     If  a  trustee  conveys  trust  prop- 

V.  Lonsdale,  1  De  G.,  J.  &  S.  433;  Bayley  v.  Williams,  11  Jur.  (n.  s.) 
236;  Clark  v.  Malpas,  31  Beav.  80;  Grosvenor  v.  Sherratt,  28  Beav. 
659;  Beanland  v.  Bradley,  2  Sm.  &  Gif.  339;  Taylor  v.  Taylor,  8  How. 
183;  Greenfield's  Est.,  14  Pa.  St.  504;  Graham  v.  Pancoast,  30  Pa.  St. 
89 ;  Nace  v.  Boyer,  Id.  99 ;  Sears  v.  Shafer,  2  Seld.  268 ;  Buffalow  v.  Buf- 
falow,  2  Dev.  &  Bat.  241;  Prewett  v.  Coopwood,  30  ]Miss.  369;  Graham 
V.  Little,  3  Jones,  Eq.  152;  Powell  v.  Cobb,  Id.  456;  Gass  v.  Mason,  4 
Sneed,  497;  Wester's  App.,  54  Pa.  St.  60;  Lovatt  v.  Knipe,  12  Ir.  Eq. 
124;  Ames  v.  Port  Hm-on,  11  Mich.  139;  European  R.  R.  Co.  v.  Poor, 
59  Me.  277. 

1  Crosskill  v.  Bower,  32  Beav.   86 ;  Pooley  v.  Quilter,  2  De  G.  &  J. 
327;  Spring  v.  Pride,    10  Jur.  (n.  s.)  646;  Ex  parte  Ridgeway,  1  Jur. 
(n.  s)  97;  Heme  v.  Meeres,  1  Vern.  465;  Ayliffe  v.  Murray,  2  Atk.  59; 
Fox  V.  Mackreth,  2  Bro.  Ch.  400;  Coles  v.  Trecothick,  9  Ves.  246;  Ex 
parte  Lacey,  6  Ves.  625;  Morse  v.  Royal,  2  Ves.  376;  Hunter  v.  Atkins, 
3  M.  &  K.  135;  Whichcote  v.  Lawrence,  3  Ves.  740;  Scott  v.  Davis,  4  M. 
&  Cr,  87;  Kerr  v.  Dungannon,  1  Dr.  &  W.  509;  Van  Epps  r.  Van  Epps, 
9  Paige,  237;  Hawley  v.  Cramer,  4  Cow.   717;  Campbell  ».  Walker,  5 
Ves.  678;  Gibson  v.  Jeyes,  6  Ves.  277;  Michoud  v.  Girod,  4  How.  503 
De  Caters  v.  Chaumont,  3  Paige,   178;  Child  ;;.  Bruce,  4  Paige,  309 
Campbell  v.  Johnston,   1  Sandf.  Ch.   148;    Cram  v.  Mitchell,  Id.   251 
Davis  V.  Simpson,  5  Har.  &  J.  147;  Boyd  v.  Hawkins,  2  Ired.  Ch.  304 
Matthews  v.   Dragand,  3  Des.  25;  Thorp  v.   McCuUum,  1  Gilm.   614 
Davoue  v.  Fanning,  2  Johns.  Ch.  252;  De  Bevoise  v.  Sandford,  1  Hoff 
192;  Stuart  v.  Kissam,  2  Barb.  493  ;  Richardson  v.  Jones,  3  G.  &  J.  163 
Clark  V.  Lee,  14  Iowa,  425 ;  Zimmerman  v.  Harmon,  4  Rich.  Eq.  165 
Johnson  v.  Blackman,  11  Conn.  343;  Moody  v.  Vandyke,  4  Binn.  31 
Armstrong  v.   Campbell,  3  Yerg.   201 ;  Bruch  v.  Lantz,  2  Rawle,   392 
Herr's  Est.,  1  Grant's  Ca.  172;  Painter  v.  Henderson,  7  Barr,  48;  Brack- 
enridge  v.  Holland,  2  Blackf.  377;  Scroggins  v.  McDougald,  8  Ala.  382 
Thompson  v.  Wheatley,  5  S.  &  M.  499;  Shelton  v.  Homer,  5  Met.  462 
Freeman  v.  Harwood,  49  Me.  195 ;  Hickman  v.   Stewart,  69  Tex.  255 
Patterson's  Appl.,  118  Pa.  St.  571. 

2  Yonge  V.  Hooper,  73  Ala.  119. 

244 


CHAP.  VI.]         CONTRACTS   WITH    CESTUI    QUE   TRUST.  [§  195. 

ertj  to  himself,  any  one  or  more  of  the  eestuis  may  avoid  the 
deed.^  In  the  case  just  cited  the  trustees  conveyed  the  trust 
property  to  themselves  through  a  third  person,  without  actual 
intent  to  defraud,  but  for  a  consideration  really  inadequate. 
Considerable  time  had  elapsed,  there  were  futm^e  interests  in 
the  property  represented  only  by  the  trustee,  and  persons 
other  than  the  trustees  had  acquired  rights  in  the  land  for 
value  ;  wherefore  on  the  whole  the  court  allowed  the  property 
to  be  retained  on  payment  of  the  difference  between  the  actual 
consideration  and  its  fair  value  with  interest  at  annual  rests. 
The  general  rule  is,  that  the  trustee  shall  not  take  beneficially 
by  gift  or  purchase  from  the  cestui  que  trust,^  even  although 
the  supposed  trustee  and  purchaser  is  a  mere  intermeddler 
and  not  a  regularly  recognized  trustee ;  ^  the  question  is  not 
whether  or  not  there  is  fraud  in  fact,  the  law  stamps  the  pur- 
chase by  the  trustee  as  fraudulent  per  se,^  to  remove  all  temp- 
tation to  collusion  and  prevent  the  necessity  of  intricate  in- 
quiries in  which  evil  would  often  escape  detection,  and  the 
cost  of  which  would  be  great.  The  law  looks  only  to  the 
facts  of  the  relation  and  the  purchase.  The  trustee  must  not 
deal  with  the  property  for  his  own  benefit.^  So  where  the 
trustee  in  selling  the  property  to  a  third  person  stipulates  that 
the  vendee  is  to  sell  it  afterwards  to  the  trustee,  and  the  agree- 
ment is  carried  out,  the  trustee  holds  still  as  trustee,  and  not 
by  an  independent  title  as  other  purchasers  from  such  vendee 
might  have.^  No  trustee  can  directly  or  indirectly  become  a 
purchaser  in  his  own  behalf  of  the  trust  property,  and  hold  it 
against  the  cestui?    A  purchase  by  a  trustee   inures  to  the 

1  Morse  v.  Hill,  13G  Mass.  60. 

2  Coles  V.  Trecothick,  9  Ves.  234;  Renew  v.  Butler,  30  Ga.  954;  Cad- 
wallader's  App.,  64  Pa.  St.  293;  Wright  v.  Smith,  23  N.  J.  Eq.  106; 
Smith  V.  Drake,  23  N.  J.  Eq.  302. 

8  Wright  V.  Smith,  23  N.  J.  Eq.  106. 

*  McGaiighey  v.  Brown,  46  Ark.  25. 

5  King  V.  Remington,  36  Minn.  25;  Baldwm  v.  Allison,  4  Minn.  11; 
Jewett  V.  Miller,  10  N.  Y.  402. 

8  I)e  Celis  v.  Porter,  59  Cal.  464. 

7  Marshall  v.  Carson,  38  N.  J.  Eq.  250;  Creveling  v.  Fritts,  34  id. 
134  ;  People  v.  O.  B.  of  S.  B.  B.  Co.,  92  N.  Y.  98. 

245 


§  195.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

benefit  of  the  cestui.^  It  is  not,  however,  void  but  only  void- 
able at  the  election  of  the  cestui  que  trust?  But  there  are 
exceptions  to  the  rule,  and  a  trustee  may  buy  from  the  cestui 
que  trust,  provided  there  is  a  distinct  and  clear  contract, 
ascertained  after  a  jealous  and  scrupulous  examination  of  all 
the  circumstances  ;  that  the  cestui  que  trust  intended  the  trus- 
tee to  buy,  and  there  is  fair  consideration  and  no  fraud,  no 
concealment,  no  advantage  taken  by  the  trustee  of  informa- 
tion acquired  by  him  in  the  character  of  trustee.^  The  trustee 
must  clear  the  transaction  of  every  shadow  of  suspicion,*  and 
if  he  is  an  attorney  he  must  show  that  he  gave  his  client,  who 
sold  to  him,  full  information  and  disinterested  advice,^  Lord 
Eldon  said  he  admitted  that  the  exception  was  a  difficult 
case  to  make  out.^  And  it  may  be  said  generally  that  it  is 
difficult  to  find  a  case  where  such  a  transaction  has  been 
sustained.'^     Any  withholding  of  information,^  or  ignorance  of 

1  People  V.  Merchants  B'k,  35  Hun,  97. 

2  Dodge  V.  Stevens,  94  N.  Y.  209;  Gibson  v.  Barbour,  100  N.  Car.  192. 

3  Wright  V.  Smith,  23  N.  J.  Eq.  106;  Bryan  v.  Duncan,  11  Ga.  67; 
Dobson  V.  Racey,  3  Sandf.  61;  Brackenridge  v.  Holland,  2  Blackf.  377; 
Paillon  V.  Martin,  1  Sandf.  509  ;  Stuart  v.  Kissam,  2  Barb.  494 ;  Braraan 
V.  Oliver,  2  Stewart,  47;  Julian  v.  Reynolds,  8  Ala.  680;  Stallings  v. 
Foreman,  2  Hill,  Ch.  401;  Pratt  v.  Thornton,  28  Me.  355;  McCartney  v. 
Calhoun,  17  Ala.  301;  Marshall  v.  Stevens,  8  Humph.  159;  Beeson  v. 
Beeson,  9  Barr,  279;  McKinley  v.  Irvine,  14  Ala.  681 ;  Farnam  v.  Brooks, 
9  Pick.  212 ;  Lyon  v.  Lyon,  8  Ired.  Eq.  201;  Harrington  v.  Brown,  5 
Pick.  519;  Jennison  v.  Hapgood,  7  Pick.  1;  Dunlap  v.  Mitchell,  10 
Ohio,  117;  Scott  v.  Freeland,  7  Sm.  &  M.  410;  Pennock's  App.,  4  Pa. 
St.  446;  Bruch  v.  Lantz,  2  Rawle,  392;  Field  v.  Arrowsmith,  3  Humph. 
442;  Monro  v.  Allaire,  2  Caine's  Cas.  163;  Salmon  v.  Cutts,  4  De  G. 
&  Sm.  131;  Harrison  v.  Guest,  6  De  G.,  M.  &  G.  431  ;  Herbert  v  Smith, 
6  Lansing,  493;  Birdwell  v.  Cain,  1  Cold.  301;  Rice  v.  Cleghorn,  21  Ind. 
80;  Johnson  v.  Bennett,  39  Barb.  37;  Buel  v.  Buckingham,  16  Iowa,  284; 
Brown  v.  Cowell,  116  ]Mass.  465:  po.'ft,  §  428 ;  Graves  v.  Waterman,  63  N.  Y. 
657;  Golson  v.  Dunlap,  73  Cal.  157;  Miggett's  App.,  109  Pa.  St.  520. 

4  Lathrop  v.  Pollard,  6  Col.  424;  Jones  r.  Lloyd,  117  111.  597;  Porter 
V.  AVoodruff,  36  N.  J.  Eq.  174;  Everett  v.  Henry,  67  Tex.  402. 

5  Dunn  V.  Dunn,  42  N.  J.  Eq.  431. 
«  Coles  V.  Trecothick,  9  Ves.  246. 

T  2  Sugd.  V.  &  P.  (8  Am.  ed.)  687. 

8  Fox  V.  Mackreth,  2  Bro.   Ch.  400;  Scott  v.  Davis,  4  M.  &  Cr.  87; 
Heme  v.  Meeres,  1  Vern.  465;  Cook  v.  Sherman,  4  McCrary  (U.  S.),  20. 
246 


CHAP.  VI.]         CONTRACTS   WITH    CESTUI   QUE  TRUST.  [§  195. 

the  facts  or  of  his  riglits  on  the  part  of  the  cestui,^  or  any  in- 
adequacy of  price,^  will  make  such  purchaser  a  constructive 
trustee.  The  cestui  que  trust  must  know  that  he  is  dealing 
with  the  trustee.  Therefore,  if  the  trustee  purchases  through 
an  agent  or  third  person,  and  the  cestui  que  trust  does  not  know 
the  trustee  in  the  transaction,  the  contract  will  be  void,  or  a 
trust  in  the  agent.^  The  rule  is  that  the  trustee  shall  not 
purchase  directly  or  indirectly  ;  therefore  if  the  trustee  con- 
veys to  a  stranger,  and  the  stranger  conveys  back  to  the 
trustee,  the  transaction  is  equally  void.*  So,  if  the  trustee 
purchases  at  auction  of  the  cestui  que  trust,  the  presumption 
is  strongly  against  the  transaction,^  and  the  purchase  is 
generally  void.^  And  one  of  several  trustees  is  under  the 
same  disabilities  :  "^  they  cannot  convey  to  each  other.^  And 
so,  if  the  purchase  is  made  by  an  agent  or  attorney  of  the 
trustee.^  Nor  can  the  trustee's  wife  purchase.^^  Nor  can 
the  trustee  purchase  as  agent  for  another.^!  The  cestui  que 
trust  is  not  estopped  to  avoid  such  sales,  although  he  has  taken 
a  legacy  under  the  will  of  the  trustee,  if  such  legacy  is  not  a 
charge  upon  the  trust  estate  and  is  not  otherwise  connected 
with  the  trust  fund.^^    If  such  sales  are  avoided,  upon  a  recon- 

1  Leach  v.  Leach,  65  Wis.  284. 

2  Pugh  V.  Bell,  1  J.  J.  Marsh.  398;  Morse  v.  Royal,  12  Ves.  373. 
8  Randall  v.  Errington,  10  Ves.  423. 

*  Dobson  V.  Racey,  3  Saudf.  61. 

^  Attorney-General  v.  Dudley,  Coop.  146;  Whelpdale  v.  Cookson,  1 
Ves.  9;  Lister  v.  Lister,  6  Ves.  631;  Sanderson  v.  Walker,  13  Ves.  601; 
Downes  v.  Grazebrook,  3  Mer.  200  ;  Campbell  v.  Walker,  3  Ves.  378; 
Whitcomb  v.  Minichin,  5  Madd.  91. 

6  Roberts  v.  Roberts,  65  N.  C.  27. 

^  Whichcote  v.  Lawrence,  3  Ves.  740. 

8  Boynton  v.  Brastow,  53  Me.  362. 

9  Campbell  v.  Walker,  5  Ves.  378;  Cox  v.  John,  32  Ohio  St.  532. 

10  Dundas's  App.,  64  Pa.  St.  325;  Leitch  v.  Wells,  48  Barb.  637.  But 
it  has  been  held  that  the  trustee's  wife  might  purchase  where  the  trust 
property  was  sold  under  a  judicial  decree  of  sale,  in  the  absence  of  fraud 
and  collusion,  if  the  sale  is  affirmed  by  a  decree  of  the  court  upon  a 
report  of  the  proceedings.     Armstrong's  App.,  69  Pa.  St.  409. 

"  North  Baltimore,  &c.  Association  v.  Caldwell,  25  Md.  420;  James 
V.  James,  55  Ala   52.5. 

12  Smith  V.  Townshend,  27  Md.  368. 

247 


§  196.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

veyance  the  trustee  is  entitled  to  receive  back  all  the  pur- 
chase-money and  all  other  claims  which  he  may  have  against 
the  estate.^  And  he  may  purchase  of  the  cestui  que  trust 
property  not  embraced  in  the  trust  fund,  care  being  taken  that 
the  influence  of  the  relation  does  not  affect  the  transaction.^ 
Sometimes  the  trustee  is  allowed,  by  decrees  of  sale,  to  be  a 
bidder  for  the  property  at  his  own  auction ;  in  such  case  the 
trustee  must  show  the  utmost  diligence  and  good  faith  for 
the  interest  of  the  cestui  que  trust?  Where  a  trustee  has  an 
interest  to  protect  by  bidding  at  a  sale  of  trust  property,  he 
may  ask  the  court  for  permission  to  bid,  and  when  this 
is  granted  after  hearing  all  parties  interested,  he  can  bid, 
and  obtain  a  perfect  title.*  And  a  trustee  may  buy  at  a 
sale  procured  by  some  one  else,  not  controlled  by  liimself,  in 
good  faith  to  protect  tlie  interests  of  himself  and  others.^  A 
trustee  who  has  bona  fide  sold  the  property  to  a  third  person 
may  afterwards  buy  it  for  himself,^  and  the  prohibition  does 
not  apply  where  the  sale  of  the  property  is  by  a  judgment 
creditor  of  the  cestui  through  the  sheriff,  and  not  the  trustee's 
sale.'^  Acquiescence,  lapse  of  time,  or  express  act  of  the 
cestui  may  make  the  trustee's  title  good.^  Matters  of  in- 
debtedness growing  out  of  relations  of  trust  and  confidence 
are  subject  to  adjustment  and  settlement  the  same  as  claims 
arising  in  other  transactions.^ 

§  196.  If  among  the  assets  of  the  trust  estate  there  are 
leases,  the  trustee  cannot  renew  them  in  his  own  name  ;  and 
if  he  renews  them  in  his  own  name,  he  must  hold  them  by  a 
constructive  trust  for  the  same  persons  beneficially  interested 

1  Elliott  V.  Pool,  6  Jones,  Eq.  42. 

2  Eldredge  v.  Smith,  34  Vt.  484. 

8  Cadwallader's  App.,  64  Pa.  St.  293;  Colgate  v.  Colgate,  23  N.  J. 
Eq.  372. 

4  Scholia  V.  Scholle,  101  X.  Y,  167. 

6  Lusk's  App.,  108  Pa.  St.  1.52;  AUen  v.  Gillette,  127  U.  S.  589. 
6  Welch  V.  McGrath,  59  Iowa,  519. 
'  Clark  V.  Holland,  72  Iowa,  36. 

^  Harrington  v.  Erie  County  Savings  Bank,  101  N.  Y.  257. 
^  Clute  V.  Frasier,  58  Iowa,  273. 
248 


CHAP.  VI.]  EENEWAL   OP   LEASES   BY  TRUSTEES.  [§  196. 

in  the  old  leases.^  Even  if  the  lessor  refuse  to  renew  the 
lease  for  the  benefit  of  the  cestui  que  trust,  and  the  trustee 
takes  it  in  his  own  name,  he  is  still  a  constructive  trustee, 
and  he  must  account  for  all  the  income  and  profits.  This  is 
on  the  ground  that  a  trustee  should  be  under  no  temptations 
to  make  any  contracts  in  relation  to  the  trust  property,  even 
collaterally,  on  his  own  private  account.^  The  same  rule  ex- 
tends to  all  persons  who  have  only  a  partial  interest  in  prop- 
erty :  they  shall  not  take  advantage  of  their  situation  to  renew 
leases  in  their  own  names ;  as,  tenants  for  life,^  mortgagees,* 
devisees  subject  to  debts,  legacies,  or  annuities,^  joint  ten- 
ants,^ or  partners  ; "  and  where  there  was  a  mere  tenancy  at 
will,  it  was  held  that  the  tenant  could  not  renew  in  his  own 
name,  and  deprive  the  remainder-man  of  what  might  come 

1  Keech  v.  Sandford,  commonly  called  the  Rumford  Market  Case,  Sel. 
Ch.  Ca.  61;  1  Lead.  Ca.  Eq.  36,  Eng.  and  Am.  notes;  Griffin  v.  Griffin,  1 
Sch.  &  Lef.  354;  Pickering  v.  Vowles,  1  Bro.  Ch.  198;  Pierson  v.  Shore, 
1  Atk.  480 ;  Nesbitt  v.  Tredennick,  1  B.  &  B.  46 ;  Turner  v.  Hill,  11  Sim. 
14  ;  Whalley  v.  Whalley,  1  Vern.  484;  Holt  v.  Holt,  1  Ch.  Ca.  190;  Ab- 
ney  v.  Miller,  2  Atk.  597 ;  Killick  v.  Flexney,  4  Bro.  Ch.  161 ;  Luckin  v. 
Rush  worth,  Finch,  392;  Anon.,  2  Ch.  Ca.  207;  Mulvaney  u  Dillon,  1  B. 
&  B.  409;  Fosbrook  v.  Balguy,  1  M.  &  K.  226;  Owen  v.  Williams,  Amb. 
794;  Fitzgibbon  v.  Scanlan,  1  Dow,  261;  Bradford  v.  Brownjohn,  L.  R. 
3  Ch.  714. 

2  Keech  v.  Sandford,  Sel.  Ch.  Ca.  61;  Griffin  v.  Griffin,  1  Sch.  &  Lef. 
353. 

8  Eyre  v.  Dolphin,  2  B.  &  B.  290;  Rawe  v.  Chichester,  Amb.  719; 
Coffin  V.  Fernyhough,  2  Bro.  Ch.  291;  Taster  v.  Marriott,  Arab.  668; 
James  v.  Dean,  11  Ves.  383;  15  Ves.  230;  Kempton  v.  Packman,  7  Ves. 
176;  Giddings  i'.  Giddings,  3  Russ.  241;  Crop  v.  Norton,  9  Mod.  233; 
Buckley  v.  Lanauze,  Llo.  &  Goo,  t.  Plunk.  327;  Tannery.  Elworthy,  4 
Beav.  487;  Waters  v.  Bailey,  2  Y.  &  C.  Ch.  218;  Yem  t;.  Edwards,  3 
K.  &  J.  564;  1  De  G.  &  J.  598;  Brookman  v.  Hales,  2  V.  &  B.  45. 

*  Rushworth's  Case,  Fi-eem.  13;  Nesbitt  v.  Tredennick,  1  B.  & 
B.  46. 

5  Jackson  v.  Welch,  Llo.  &  Goo.  t.  Plunk.  346;  Winslow  v.  Tighe,  2 
B.  &  B.  195;  Stubbs  v.  Roth,  Id.  548;  W^ebb  v.  Lugar,  2  Y.  &  C.  247; 
Jones  V.  Kearney,  1  Conn.  &  Laws.  34. 

^  Palmer  v.  Young,  1  Vern.  276. 

'  Fetherstonhaugh  v.  Fenwick,  17  Ves.  298;  Ex  parte  Grace,  1  Bos.  & 
P.  376;  Clegg  v.  Fishwick,  1  Macn.  &  G.  294,  299,  Am.  ed.  Perkins, 
note  1;  Clegg  v.  Edmondson,  8  De  G.,  M.  &  G.  787. 

249 


§  107.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

to  hlm.i  And  if,  instead  of  renewing,  the  trustee  or  other 
person  sell  the  right  to  renew  for  money,  he  must  account  for 
the  price  to  the  persons  beneficially  interested.^  Nor  can  an 
agent  acting  for  the  trustee  renew  in  his  own  name.^  The 
same  rule  applies  when  the  trustee  of  an  equity  of  redemption 
becomes  the  purchaser  in  a  foreclosure  suit,*  and  to  the  pur- 
chase by  a  trustee  of  any  property,  not  a  part  of  the  trust 
fund,  which  has  the  necessary  effect  to  diminish  the  trust 
fund.^ 

§  197.  It  is  thus  seen  that  the  rule  against  purchasing  by 
trustees,  of  the  cestui  que  trust,  amounts  almost  to  prohibition; 
for  if  a  trustee  purchases  the  property,  and  sells  it  at  a  profit, 
he  must  account  for  it  as  a  trustee ;  not  because  there  was 
any  fraud  in  the  transaction,  but  because  it  is  against  the 
policy  of  the  law  to  allow  such  transactions.^  Nor  is  it  mate- 
rial that  there  should  be  an  advantage,  or  profit,  arising  out 
of  a  purchase  by  the  trustee  from  the  cestui  que  trust.  It  is 
not  necessary  to  prove  such  advantage  or  profit :  it  is  enough 
to  show  the  relation  and  the  purchase.  The  trustee  can 
make  no  profit  from  his  management  of  the  estate,  and  he  is 
bound  not  to  put  himself  in  any  position  where  his  private 

1  James  v.  Dean,  11  Ves.  383;  15  Ves.  236;  Re  Tottenham,  16  Ired. 
Ch.  118. 

2  Owen  V.  Williams,  Amb.  734. 
8  Edwards  v.  Lewis,  3  Atk.  538. 

4  Hubbell  V.  Medbury,  53  N.  Y.  98 ;  Terrett  v.  Crombie,  6  Lansing,  83. 

6  Fulton  V.  Whitney,  67  N.  Y.  548. 

6  Hawley  v.  Cramer,  4  Cow.  117;  Prevost  v.  Gratz,  1  Pet.  66,  367;  6 
Wheat.  481;  Edwards  v.  Meyrick,  2  Hare,  60;  Hamilton  v.  Wright,  9 
CI.  &  Fin.  Ill;  Fox  v.  Mackreth,  2  Bro.  Ch.  400;  1  Cox,  310;  John  v. 
Bennett,  39  Barb.  237;  Kent  v.  Chalfant,  7  Minn.  487;  Tiffany  v.  Clark, 
1  N.  Y.  Sup.  Ct.  Add.  9;  Handlin  v.  Davis,  81  Ky.  34.  An  administrator 
who  has  bid  in,  in  his  own  name,  at  a  foreclosure  of  a  mortgage  belonging 
to  his  intestate,  under  the  act  authorizing  him  to  do  so,  holds  in  trust, 
and  cannot  sell  without  the  authority  of  the  court.  Rafferty  v.  Mallory, 
3  Bissell,  362.  But  see  Frouberger  v.  Lewis,  79  N.  C.  426,  where  an 
exception  to  the  rule  is  said  to  be  in  case  the  trustee  has  a  personal  inter- 
est in  the  property,  when  he  may  bid  at  the  sale  to  protect  that  interest ; 
but  then  he  ought  to  obtain  the  sanction  of  the  court. 

250 


CHAP.  VI.]  RENEWAL    OP    LEASES    BY    TRUSTEES.  [§  198. 

interests  may  conflict  with  the  interests  of  the  cestui  que  trust} 
If  a  trustee  purchases  the  trust  property,  the  cestui  que  trust 
may  have  the  purchase  set  aside  and  the  property  resold.^ 
The  general  rule  is  that  only  lapse  of  time  or  ratification  can 
make  the  purchase  good,  and  the  burden  of  proof  is  on  the 
trustee  to  show  laches  or  acquiescence.^  But  if  he  has  made 
a  fair  sale  to  a  third  party,  it  has  been  held  that  the  trustee 
could  repurchase  from  his  trustee,  though  the  transaction  will 
be  jealously  scrutinized  in  equity.* 

§  198.  The  cestui  que  trust  alone  can  avoid  such  convey- 
ances.^ They  are  at  his  option.  And  if  they  are  found  to 
be  beneficial  to  him  or  otherwise,  he  may  compel  the  trustee 
to  complete  a  purchase  and  take  the  estate  and  pay  the 
purchase-money.^ 

^  Ex  parte  Lacey,  6  Ves.  625;  Chesterfield  v.  Janssen,  2  Ves.  138 
Campbell  v.  Walker,  5  Ves.  678 ;  13  Ves.  138  ;  Cane  v.  Allen,  2  Dow,  289 
Slade  V.  Van  Vechten,  11  Paige,  21 ;  Davoue  v.  Fanning,  2  Johns.  Ch.  252 
Michoud  V.  Gh-od,  4  How.  503 ;  Dobson  v.  Racey,  3  Sandf .  61  ;  Morse  v. 
Royal,  12  Ves.  355;  Ex  parte  James,  8  Ves.  337;  Ex  parte  Bennett,  10 
Ves.  381 ;  Saagar  v.  Wilson,  4  S.  &  W.  102.    Such  transactions  are  fraudu- 
lent joer  se.     Nelson  v.  Hoyvner,  66  111.  487.     The  attorney  of  the  trustee 
comes  equally  within  the  prohibition,  and  it  makes  no  difference  in  the 
application  of  the  rule  that  a  third  person  has  conducted  the  business  and 
shares  in  the  profits.     Cox  v.  John,  32  Ohio  St.  532. 

2  Sypher  v.  McHenry,  18  Iowa,  232.  After  the  trust  is  ended  and  the 
trustee  has  made  a  sale  under  his  power,  the  trustee,  acting  in  good  faith, 
may  deal  with  the  property  and  become  the  owner  of  what  was  trust  prop- 
erty by  purchase  or  otherwise.  Bush  v.  Shearman,  80  111.  160.  But  the 
court  will  carefully  see  that  good  faith  is  observed;  and  a  settlement  of 
guardian's  account  and  conveyance  of  minor's  property  on  the  day  he 
becomes  of  age,  and  while  he  is  unadvised  of  his  rights,  under  the  influ- 
ence and  control  of  others,  is  not  binding,  and  can  only  be  upheld  by  clear 
proof  that  it  is  just  and  equitable.  Berkmeyer  v.  Kellerman,  32  Oliio  St. 
239.  See  Sugd.  V.  &  P.  (8th  Am.  ed.)  685  et  seq.,  where  the  rules  are 
clearly  stated  by  Lord  St.  Leonards,  and  the  American  cases  are  all  col- 
lected and  arranged  by  Hon.  J.  C.  Perkins. 

8  Pearce  v.  Gamble,  72  Ala.  341. 

*  Foxworth  V.  White,  72  Ala.  224.  5  Ri(.e  «.  Cleghorn,  21  Ind.  80. 

e  Thorp  ?j.  McCullum,  1  Gilm.  624;  McClure  i'.  Miller,  1  Bail.  Ch.  107; 
Lister  v.  Lister,  6  Ves.  631 ;  Ex  parte  Roynolds,  5  Ves.  707 ;  Sanderson  v. 
Walker,  13  Ves.  603;  Larco  v.  Casaneuava,  30  Cal.  560. 

251 


§  199.J         ,  CONSTRUCTIVE    TRUSTS.  [CHAP.  VI. 

§  199.  The  above  rule  does  not  apply  to  mere  naked  or  dry 
trustees  who  practically  have  no  interest  in  or  power  over  the 
estate,  as  trustees  to  preserve  contingent  remainders.^  Where 
the  trustee  has  no  duty  to  perform,  as  where  one  is  trustee 
in  fee  for  another  in  fee,  having  no  authority  over  the  estate, 
and  standing  in  no  relation  of  influence  over  the  cestui  que 
trust,  the  person  named  as  trustee  may  purchase  ;2  and  if  the 
cestui  que  trust  make  all  the  arrangements  for  the  sale,  such 
as  plans,  notices,  choice  of  auctioneer,  terms  and  conditions, 
and  the  trustee  is  in  no  situation  to  obtain  any  exclusive 
information,  the  court  will  deal  with  the  contract  as  with 
contracts  between  other  parties.^  A  mortgagee  may  purchase 
of  the  mortgagor  under  a  decree  of  foreclosure  or  otherwise,* 
but  if  the  mortgage  contains  a  power  of  sale,  the  mortgagee 
becomes  a  trustee  of  the  power  of  sale  for  the  mortgagor,  and 
neither  he  nor  his  ag.ents,  attorneys,  or  auctioneers,  can  pur- 
chase for  themselves  or  others ;  or,  if  they  do,  they  become 
constructive  trustees.^     And  so  the  pledgee  of  stock  cannot 

1  Parker  v.  White,  11  Ves.  226;  Naylor  v.  Winch,  1  S.  &  S.  567  ;  Sut- 
ton V.  Jones,  15  Ves.  587 ;  Pooley  v.  Quilter,  4  Drew.  189. 

2  Pooley  V.  Quilter,  4  Drew.  189. 

8  Coles  V.  Trecothick,  9  Ves.  248 ;  Monro  v.  Allaire,  2  Caine's  Ca.  183; 
Salmon  v.  Cutts,  4  De  G.  &  Sm.  131. 

«  Iddings  V.  Bruen,  4  Sandf.  Ch.  223;  Murdoch's  Case,  2  Bland.  461; 
Knight  V.  Majoribanks,  2  Mac.  &  G.  10 ;  2  Hall  &  T.  308 ;  Rhodes  v. 
Sanderson,  36  Cal.  414. 

6  Dobson  V.  Racey,  4  Seld.  216;  Waters  v.  Groom,  11  CI.  &  Fin.  684; 
Mapps  V.  Sharpe,  32  111.  13 ;  INlurray  v.  Vanderbilt,  39  Barb.  140 ;  Black- 
ley  V.  Fowler,  31  Cal.  326 :  Olcott  v.  Tioga  R.  R.  Co.,  27  K  Y.  546;  El- 
liott V.  Wood,  53  Barb.  285;  Thornton  v.  Jarvin,  43  Mo.  153;  Wall  w. 
Town,  45  111.  493;  Robinson  v.  Cudwin,  41  Ala.  693;  Allen  v  Chatfield, 
3  Minn.  435  ;  Montague  v.  Dawes,  14  Allen,  369.  See  Bailey  v.  ^tna  In- 
surance  Co.,  10  Allen,  286;  Fowle  v.  Merrill,  10  Allen,  350;  Smith  v. 
Provin,  4  Allen,  516;  Woodlee  v.  Burch,  43  Mo.  231;  Dyer  v.  ShurtlefP, 
112  Mass.  165.  See  Scott  v.  Mann,  33  Tex.  721.  But  a  second  mort- 
gagee may  purchase  under  a  power  of  sale  contained  in  a  prior  mortgage. 
Parkinson  v.  Hanbury,  1  Dr.  &  Sm.  143;  2  De  G.,  J.  &  S.  455,  Shaw  v. 
Bunney,  34  L.  J.  Ch.  257;  11  Jur.  (n.  s.)  99;  2  De  G.,  J.  &  S.  468; 
Kirkwood  v.  Thompson,  11  Jur.  (n.  s.)  385;  2  De  G.,  J.  &  S.  613. 
And  it  is  said  that  the  administrator  of  the  mortgagee  may  purchase. 
Woodlee  i".  Burch,  43  J\Io.  231.     And  so  a  trustee  may  buy  the  equity 

252 


CHAP.  VI.]       CONTRACTS   OF   GUARDIAN   WITH   WARD.  [§  200. 

buy  the  same  even  at  the  broker's  board. ^  Where  land  is 
devised  to  one  charged  with  the  payment  of  an  annuity  to 
another  for  life,  the  devisee  does  not  stand  in  the  position  of 
trustee  for  the  annuitant,  and  he  may  purchase  the  annuity 
at  a  profit.^  So  a  cestui  que  trust  may  devise  property  to  his 
trustee,  and  there  is  no  presumption  against  such  gifts.^  A 
cestui  que  trust  may  purcliase  the  trust  property  or  other  prop- 
erty of  the  trustee,  and  the  purchase  will  be  good ;  at  least 
the  trustee  cannot  set  it  aside.*  But  sales  to  a  cestui  que  trust 
involving  an  investment  of  the  trust  fund,  or  any  dealing  in 
relation  to  it,  may  be  avoided  by  the  cestui  que  trust.^ 

§  200.  Conveyances  from  wards  to  guardians  are  investi- 
gated with  more  severity  by  courts  than  contracts  between 
parent  and  child,  for  the  reason  that  there  is  not  that  family 
relationship  and  affection  which  sustain  and  uphold  family 

of  redemption  in  property  on  which  he  holds  a  mortgage  as  trustee. 
Britton  v.  Lewis,  8  Rich.  Eq.  271;  Eldridge  v.  Smith,  5  Shaw,  484. 
The  power  of  sale  is  a  power  coupled  with  an  interest,  and  is  irrevoca- 
ble. Capron  v.  Attleborough  Bk.,  11  Gray,  492.  And  can  be  executed 
after  the  death  of  the  mortgagor.  Varnum  v.  Meserve,  8  Allen,  158; 
Ilarnehall  v.  Orndorff,  35  Md.  340.  As  to  form  of  notice,  see  Roche  v. 
Farnsworth,  106  Mass.  509,  and  remarks  of  Endicott,  J.,  upon  this  case 
in  Dyer  v.  Shurtleff,  112  Mass.  165.  Equity  will  aid  the  defective  exe- 
cution of  a  power  of  sale  in  a  mortgage  in  favor  of  a  bona  fide  purchaser 
who  has  paid  his  money  for  the  estate.  Beatty  v.  Clark,  20  Cal.  11; 
Rowon  V.  Lamb,  4  Green,  468.  The  whole  matter  of  power  of  sale  in 
mortgages,  with  the  authorities,  is  stated  in  1  Sugd.  V.  &  P.  65-68.  If  a 
power  of  sale  in  a  mortgage  provides  for  the  payment  of  the  expenses  of 
the -sale,  counsel  fees  may  be  paid.  Varnum  v.  Meserve,  8  Allen,  158. 
But  the  mortgagee  can  receive  nothing  for  his  own  time  and  trouble  in 
executing  the  power.     Imboden  v.  Atkinson,  23  Ark.  622. 

^  Maryland  Ins.  Co.  v.  Dalrymple,  25  Md.  242 ;  Baltimore  Ins.  Co.  v. 
Dalrymple,  Id.  269;  Byron  v.  Rayner,  Id.  424. 

■^  Powell  V.  Murray,  2  Edw.  636. 

3  Stump  w.  Gaby,  5  De  G.,  M.  &  G.  623;  Hindson  v.  Wetherill,  Id. 
301.     But  see  Waters  v.  Thorn,  22  Beav.  547. 

*  Walker  y.  Brungard,  13  Sm.  &  M.  723;  Bank  v.  Macy,  4  Ind.  362. 

6  McCants  v.  Bee,  1  McCord,  Ch.  382;  Chester  v.  Greer,  5  Humph.  26; 
Wade  V.  Harper,  3  Yerg.  383.  Where  a  sale  of  land  by  trustee  of  a  bank 
is  sought  to  be  avoided  by  the  ce?.tm  que  trust,  the  improvements  cannot 
be  made  a  charge  against  the  seller.     Paine  v.  Irwin,  16  Hun,  390. 

253 


§  200.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

settlements.  The  relation  between  guardian  and  ward  is  one 
of  great  influence  over  the  ward,  and  is  generally  founded 
upon  the  pecuniary  relation  between  them.  While  the  rela- 
tion actually  subsists,  no  contracts  can  be  made.^  But  if  a 
contract  or  conveyance  is  made  by  the  ward  to  the  guardian 
just  after  attaining  his  property,  and  before  a  full  settlement 
is  made,  and  while  the  influence  of  the  guardian  is  still  in  full 
force,  courts  will  examine  it  in  all  its  aspects  ;  and  the  guar- 
dian claiming  under  such  a  conveyance  must  satisfy  the  court 
that  the  transaction  was  fair  and  proper,  and  that  it  did  not 
proceed  from  undue  influence,  or  from  any  fear,  hope,  or  other 
unworthy  motive  induced  in  the  mind  of  the  ward  by  the 
conduct  of  the  guardian.^  If  there  is  the  slightest  suspicion 
of  any  improper  motive  for  a  gift,  as  that  a  better  or  more 
speedy  settlement  may  be  obtained,  the  conveyance  will  be 
avoided,  and  the  guardian  will  continue  to  hold  the  property 
in  trust  for  the  ward.  Where  a  guardian  improperly  procures 
an  infant's  land  to  be  sold  by  decree  of  a  court,  the  convey- 
ance will  be  avoided ;  but  if  the  land  has  been  conveyed  to 
an  innocent  purchaser  without  notice,  the  title  will  be  allowed 
to  stand.^  The  influence  of  the  guardian  over  the  ward  may 
be  so  subtle,  and  the  motives  of  the  gift  may  be  of  such  a 
nature,  as  to  baffle  a  court  of  equity  in  reaching  them.  There- 
fore it  has  been  said  that,  although  the  gift  from  the  ward 
may  be  a  liighly  moral  act,  and  alike  creditable  and  honor- 
able to  him,  yet,  if  the  court  is  not  entirely  satisfied  by  clear 
demonstration  that  the  gift  was  properly  made,  it  will  be  set 
aside.  Nothing  can  be  allowed  to  stand  that  proceeds  from 
the  pressure  of  the  relation  of  guardian  and  ward  fresh  upon 

1  Dawson  v.  Massey,  IB.  &  B.  226;  Blackmore  v.  Shelby,  8  Humph 
439;  Bostwick  v.  Atkins,  3  Comst.  53;  Gallatiau  v.  Cunningham,  8  Cow 
361 ;  Clarke  v.  Devereaux,  1  S.  C.  172. 

2  Richardson  r.  Linney,  7  B.  Mon.  471;  Andrews  v.  Jones,   10  Ala 
400;  Eberts  v.  Eberts,  54  Pa.  St.  110;  Dawson  v.  iAJassey,  1  B.  &  B.  229 
Wright  V.  Proud,  13  Ves.  136;  Wedderburn  v.  Wedderburn,  4  M.  &  C 
41;  Aylwardu.  Kearney,  2  B.  &  B.  463;  Mulhallen  v.  Murum,  3  Dr.   & 
W.  317;  Cary  v.  Mansfield,  1  Yes.  379;  Garvin  v.  Williams,  44  Mo.  465; 
Amer.  Law  Reg.  vol.  11  (x.  s.),  656;  Ashton  v.  Thompson,  32  Minn.  25. 

8  Gwinn  v.  Williams,  30  Md.  376. 
254 


CHAP.  VI.]     CONTRACTS    OP    PARENTS    WITH    CHILDREN.  [§  201. 

the  mind  of  the  ward.^  But  if  the' relation  has  entirely  ceased, 
and  a  full  settlement  has  been  made,  and  the  ward  has  ob- 
tained the  full  control  of  his  property,  and  if  sufficient  time  has 
elapsed  to  emancipate  the  mind  of  the  ward  from  all  undue  im- 
pressions and  influences,  it  may  not  only  be  proper,  but  highly 
meritorious  and  honorable,  for  a  ward  to  make  a  fitting  gift 
to  a  guardian  who  has  faithfully  performed  his  trust ;  and 
a  court  fully  satisfied  upon  these  points  would  uphold  it.^ 

§  201.  In  the  same  manner  courts  of  equity  carefully  scru- 
tinize contracts  between  parents  and  children  by  which  the 
property  of  children  is  conveyed  to  parents.  The  position 
and  influence  of  a  parent  over  a  child  are  so  controlling,  that 
the  transaction  should  be  carefully  examined,  and  sales  by  a 
child  to  a  parent  must  appear  to  be  fair  and  reasonable.^ 
Such  contracts  are  not,  however,  prima  facie  void,  but  there 
must  be  some  affirmative  proof  of  undue  influence  or  other 
improper  conduct  to  render  the  transaction  void ;  for  while 
the  parent  holds  a  powerful  influence  over  the  child,  the  law 
recognizes  it  as  a  rightful  and  proper  influence,  and  does  not 
presume,  in  the  first  instance,  that  a  parent  would  make  use 
of  his  authority  and  parental  power  to  coerce,  deceive,  or 
defraud  the  child.*  Therefore  it  is  always  necessary  to  prove 
some  improper  and  undue  influence,  in  order  to  set  aside  con- 
tracts between  parents  and  children."  As  purchases  by  a 
parent  in  the  name  of  a  child  do  not  create  a  resulting  trust, 

1  Hatch  V.  Hatch,  9  Ves.  297;  Hylton  v.  Hylton,  2  Ves.  548;  Pierce 
V.  Waring,  Id.,  and  1  Ves.  380,  and  1  P.  Wms.  120,  n.;  1  Cox,  125;  Wood 
V.  Dowries,  18  Ves.  126;  Johnson  v.  Johnson,  5  Ala.  90;  Williams  v. 
Powell,  1  Ired.  Eq.  460 ;  Caplinger  v.  Stokes,  Meigs,  175 ;  Somes  v.  Skinner, 
16  Mass.  318;  AVhitman's  App.,  28  Pa.  St.  348;  Hawkin's  App.,32Pa.  St. 
283  ;  Scott  v.  Freeland,  7  Sra.  &  M.  420;  Garvin  v.  Williams,  44  Mo.  465. 

2  Hylton  V.  Hylton,  2  Ves.  547;  Hatch  v.  Hatch,  9  Ves.  548. 

8  Blunder  v.  Barker,  1  P.  Wms.  639 ;  Wallace  v.  Wallace,  2  Dr.  &  W. 
452;  Cocking  v.  Pratt,  1  Ves.  401  ;  Heron  v.  Heron,  2  Atk.  181 ;  Carpen- 
ter V.  Heriot,  1  Eden,  328 ;  Young  v.  Peachey,  2  Atk.  258. 

"  Jenkins  v.  Pye,  12  Pet.  253,  254. 

6  Cocking  tj.  Pratt,  1  Ves.  401;  Hawes  v.  Wyatt,  3  Bro.  Ch.  156;  2 
Cox,  263;  Heron  v.  Heron,  2  Atk.  161;  Young  v.  Peachey,  Id;  Carpenter 
V.  Heriot,  1  Eden,  328. 

255 


§  202.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  YI. 

but  are  presumed,  in  the  first  instance,  to  be  the  advances 
made  by  the  parent  to  the  child,  so  conveyances  to  the  parent 
by  tlie  child  may  be  a  proper  family  arrangement,  and  for  the 
best  interest  of  the  child.^  If  no  such  considerations  can  be 
found  in  the  case,  and  the  conveyance,  after  all  allowances 
are  made,  is  found  to  have  been  wrongfully  obtained  from  the 
child,  a  court  of  equity  will  set  it  aside  or  convert  the  parent 
into  a  trustee.^  But  the  proceedings  must  be  had  at  once. 
The  child  cannot  wait  until  the  parent's  death,  or  until  the 
rights  of  other  parties  have  intervened.^  The  same  rules 
apply  when  contracts  are  made  between  children  and  those 
who  have  put  themselves  in  loco  parentis ;  *  and  so  when 
family  relatives  make  use  of  their  position  and  influence  to 
obtain  undue  and  improper  advantages,  as  where  two  broth- 
ers obtained  a  deed  from  a  sister,  it  was  set  aside.^ 

§  202.  The  relation  of  attorney  and  client  is  one  of  especial 
confidence  and  influence,  and  while  that  relation  continues 

1  Blackborn  v.  Edgeley,  1  P.  Wms.  607;  Cooke  v.  Burtchaell,  2  Dr.  & 
AV.  105;  Browne  u.  Carter,  5  Ves.  877;  Tendrill  v.  Smith,  2  Atk.  85; 
Cory  V.  Cory,  1  Ves.  19;  Kinchant  v.  Kinchant,  3  Bro.  Ch.  374;  Tweddell 
V.  Tweddell,  T.  &  R.  14;  Hartopp  v.  Hartopp,  21  Beav.  259;  Hannah  v. 
Hodgson,  30  Beav.  19. 

2  King  V.  Savery,  1  Sm.  &  Gif.  271;  5  H.  L.  Ca.  627;  Berdoe  v.  Daw- 
son, 11  Jur.  (n.  8.)  254;  Bury  v.  Oppenheim,  26  Beav.  594;  Baker  v. 
Bradley,  7  De  G.,  M.  &  G.  597;  35  Eng.  L.  &  Eq.  449;  Field  v.  Evans, 
15  Sim.  375;  Slocumb  u.  Marshall,  2  Wash.  C.  C.  397;  Brice  v.  Brice,  5 
Barb.  533;  Whelan  v.  Whelan,  2  Cow.  537;  Young  i'.  Peachey,  2  Atk. 
254;  Glisson?).  Ogden,  Id.  258;  Baker  v.  Tucker,  2  Eng.  L.  &  Eq.  1; 
Blackborn  w.  Edgeley,  1  P.  Wms.  607;  Morris  v.  Burroughs,  1  Atk.  402; 
Tendrill  u.  Smith,  2  Atk.  85;  Hoghton  v.  Hoghton,  15  Beav.  278;  Wal- 
lace V.  Wallace,  2  Dr.  &  W.  452 ;  Cooke  v.  Lamotte,  15  Beav.  234  ;  Hunter 
V.  Atkins,  3  M.  &  K.  146;  Archer  v.  Hudson,  7  Beav.  551;  Findley  v. 
Patterson,  2  B.  Mon.  76. 

8  Wright  V.  Vanderplank,  2  K.  &  J.  1 ;  8  De  G.,  M.  &  G.  133;  Brown 
V.  Cajter,  5  Ves.  877 ;  Taylor  v.  Taylor,  8  How.  201 ;  Crispell  r.  Dubois,  4 
Barb.  393. 

♦  Archer  v.  Hudson,  7  Beav.  551 ;  Maitland  v.  Backhouse,  16  Sim.  68; 
Maitland  v.  Irving,  15  Sim.  437. 

6  Sears  r.  Shafer,  2  Seld.  268;  Hewitt  v.   Crane,  2  Halst.   Ch.   159; 
Boney  v.  Hollingsworth,  23  Ala.  690. 
256 


CHAP.  VI.]  ATTORNEY    AND    CLIENT.  [§  202. 

the  attorney  cannot  receive  gifts  or  make  purchases  from  the 
client.^  It  has  been  said  in  some  cases  that  the  attorney  is 
absolutely  prohibited  from  entering  into  contracts  with  his 
clients.^  If  the  rule  is  not  quite  so  peremptory  as  this,  it  at 
least  goes  to  the  extent  of  prohibiting  him  from  contracting 
with  his  client  for  an  interest  in  the  subject-matter  of  the 
litigation.^  The  client  is  so  completely  in  the  bands  of  the 
attorney  in  relation  to  the  subject-matter  of  litigation,  that 
it  would  be  almost  impossible  for  him  to  enter  into  a  free 
and  fair  contract  in  regard  to  it.  Besides,  it  is  against  the 
policy  of  the  law  that  attorneys  should  obtain  interests  in 
litigated  claims,  and  exercise  their  offices  under  such  infiu- 
ences  of  gain.  In  all  cases  the  burden  is  upon  the  attorney 
making  a  purchase  of  a  client,  to  vindicate  the  transaction 
from  all  suspicion.*     And  if  the  attorney  cannot  produce  evi- 

1  Welles  V.  Middleton,  1  Cox,  125;  Wright  v.  Proud,  13  Ves.  137; 
Cheslyn  v.  Dalby,  2  Y.  &  C.  Ch.  194;  Hunter  v.  Atkins,  3  M.  &  K.  113; 
Wood  V.  Downes,  18  Ves.  126 ;  Savery  v.  Kiug,  35  Eng.  L.  &  Eq.  100 ; 
De  Montmorency  v.  Deveieaux,  7  CI.  &  Fin.  188;  Jones  v.  Tripp,  Jac. 
322 ;  Godard  v.  Carlisle,  9  Price,  169 ;  Edwards  v.  Meyrick,  2  Hare,  68. 

2  Wright  c.  Proud,  13  Ves.  138;  Holman  v.  Loynes,  4  De  G.,  M.  &  G. 
270;  Thompson  v.  Judge,  3  Dr.  306;  19  Jur.  583;  24  L.  J.  Ch.  785; 
Henry  v.  Raiman,  25  Pa.  St.  354 ;  West  v.  Raymond,  21  Ind.  305;  Atkins 
r.  Delmage,  12  Ir.  Eq.  2;  Webster  v.  King,  33  Cal.  148;  Frank's  App., 
59  Pa.  St.  19U;  Lovatt  v.  Knipe,  12  Ir.  Eq.  124;  Purcell  v.  Buckley, 
Id.  55. 

3  Oldham  v.  Hand,  2  Ves.  259;  Wood  v.  Downes,  18  Ves.  120;  Hall  v. 
Hallett,  1  Cox,  134;  West  r.  Raymond,  21  Ind.  305. 

*  Newman  v.  Payne,  2  Ves.  Jr.  199;  Welles  v.  Middleton,  1  Cox,  112; 
4  Bro.  P.  C.  245;  Harris  v.  Tremenheere,  15  Ves.  34;  Hunter  v.  Atkins, 
3  M.  &  K.  135;  Cane  v.  Allen,  2  Dow,  289;  Champion  v.  Rigby,  1  R.  & 
M.  539;  Bellow  v.  Rus.seII,  1  B.  &  B.  107;  Gibson  v.  Jeyes,  G  Ves.  277; 
Uppington  v.  Buller,  2  Dr.  &  W.  184;  Walmesjey  v.  Booth,  2  Atk.  30; 
Montesquieu  v.  Sandys,  18  Ves.  302;  Edwards  r.  Meyrick,  2  Hare,  60; 
Wood  V.  Downes,  18  Ves.  120;  Lewis  v.  Hillman,  3  H.  L.  Ca.  607;  Sal- 
mon V.  Cutts,  4  De  G.  &  Sm.  131;  Holman  v.  Loynes,  4  De  G.,  M.  &  G. 
270;  King  ik  Savery,  5  H.  L.  Ca.  627;  Robinson  v.  Briggs,  1  Sm.  &  Gif. 
184;  Greenfield's  Est.,  2  Harris,  489;  Merritt  v.  Lambert,  10  Paige,  3.57; 
Wallis  V.  Loubat,  2  Denio,  C07;  Howell  v.  Ransom,  11  Paicre,  508  ;  Evans 
V.  Ellis,  5  Denio,  640;  Barry  v.  Whitney,  3  Sand.  S.  C.  696;  Hawley  v. 
Cramer,  4  Cow.  717;  Mott  v.  Harrington,  12  Vt.  199;  Miles  v.  Ervin, 
1  McCord,  Ch.  524;  Waters  v.  Thorn,  22  Beav.  547;  Bank  r.  Tyrrell, 
VOL.  I  —  17  257 


§  202]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

dence  that  puts  the  transaction  clearly  beyond  all  doubt  or 
question,  it  will  be  set  aside  or  he  will  be  converted  into  a 
trustee.^  This  disability  of  an  attorney  continues  as  long  as 
the  relation  of  attorney  and  client  continues,  and  as  much 
longer  as  the  influence  of  the  relation  can  be  supposed  to 
extend.  If  the  relation  has  ceased,  but  the  influence  of  the 
relation  continues  to  affect  the  minds  of  the  parties,  all  con- 
tracts made  under  the  influence  will  be  avoided.^  But  if  the 
relation  has  entirely  ceased,  and  there  can  be  supposed  to  be 
no  influence  remaining,  the  rule  will  not  apply .^  And  so,  if 
an  attorney  makes  a  purchase  of  a  client  of  property  entirely 
disconnected  with  the  subject  of  the  litigation,  and  the  trans- 
action is  in  all  respects  as  if  it  had  taken  place  between 
strangers,  the  rule  will  not  apply.*  So  the  rule  does  not 
apply  to  a  gift  to  an  attorney  in  the  will  of  a  client,  if  the 
will  is  a  good  and  valid  instrument  in  the  courts  where  it  is 
presented  for  probate  ;  ^  and  a  voidable  conveyance  to  an 
attorney  may  be  confirmed  in  the  will  of  the  client.^  But 
the  rule  will  not  apply  to  an  attorney  incidentally  consulted 
concerning  some  point  of  the  litigation,  but  who  is  not  em- 
ployed or  confided  in,  for  the  management  of  the  case,'  nor 
will  it  apply  to  the  attorney  upon  the  other  side,^    Nor  will 

27  Beav.  273;  10  II.  L.  Ca.  26;  Wall  v.  Cockerell,  Id.  229;  Brown  v. 
Kennedy,  33  Beav.  133;  Smedley  v.  Varley,  23  Beav.  359;  O'Brien  v. 
Lewis,  4  Gif.  221;  Corley  v.  Stafford,  1  De  G.  &  J.  238;  Spring  v.  Pride, 
10  Jur.  (n.  s.)  646;  Gresley  v.  Mousley,  4  De  G.  &  J.  78;  Barnard  i'. 
Hunter,  2  Jur.  (n.  s.)  1213;  Douglass  v.  Culvervrell,  31  L.  J.  Ch.  65,  543; 
Brock  V.  Barnes,  40  Barb.  521. 

1  Ibid.  ;  Smith  v.  Brotherline,  62  Pa.  St.  461. 

2  Henry  v.   Raiman,  25  Pa.  St.  354;  Leisenring  v.   Black,  5  Watts, 
303  ;  Hockenbury  v.  Carlisle,  5  Watts  &  S.  350. 

3  Wood  V.  Downes,  18  Ves.  127. 

*  Edwards  i'.  Meyrick,  2  Hare,  60;  Bellows  v.  Russell,  1  B.  &  B.  101; 
Montesquieu  v.  Sandys,  18  Ves.  302. 

5  Hindson  v.  Wetherell,  5  De  G.,  M.  &  G.  30;  overruling  same  case, 
I  Sra.  &  G.  604.     But  see  23  L.  Rev.  442,  and  notes  to  1  Sra.  &  G  604. 

6  Stump  V.  Gaby,  2  De  G.,  M.  &  G.  623.     But  see  Waters  v.  Tliorn, 
22  Beav.  447. 

7  Dobbins  v.  Stevens,  17  S.  &  R.  13;  Devinney  r.  Xorris,  8  Watts,  314. 

8  Bank  v.  Foster,  8  Watts,  305. 

258 


CHAP.  VI.]  ATTORNEY   AND    CLIENT.  [§  203. 

it  apply  after  the  relation  has  ceased  and  the  attorney  has 
assumed  a  hostile  position  in  endeavoring  to  collect  his  fees.^ 
But  it  has  been  held  that  an  attorney  having  a  lien  or  an 
execution  in  favor  of  his  client  could  not  buy  in  land  of  his 
client  at  a  sale  thereof  on  execution.''^  If  an  attorney  takes 
an  absolute  deed  from  a  client  in  payment  of  his  fees,  the 
court  may  order  it  to  stand  as  a  mortgage  security,^  and  where 
there  was  a  fair  agreement  that  an  attorney's  fees  should  be 
charged  upon  the  estate,  if  recovered,  the  court  allowed  it  to 
stand  in  the  absence  of  undue  influence,*  and  so  the  court 
will  not  interfere  after  a  great  lapse  of  time  where  the  sale 
was  for  full  value.^  Where  an  attorney  buys  land  at  an  exe- 
cution sale  in  favor  of  his  client,  the  latter  may  elect  to  hold 
the  lawyer  his  trustee,  but  must  make  his  choice  within  a 
reasonable  time.*^ 

§  203.  All  the  dealings  between  attorney  and  client  will  be 
carefully  examined  by  courts,  and  no  purchase  of  a  client's 
property  will  be  allowed  to  stand.'  Thus  a  bond  obtained 
from  a  poor  and  distressed  client,  the  consideration  not  ap- 
pearing with  sufficient  clearness,  was  set  aside,^  and  so  a  bond 
was  not  allowed  to  stand  except  for  the  amount  of  fees  actu- 
ally due,^  and  a  judgment  was  inquired  into  after  a  consider- 
able lapse  of  time.^*'  And  even  where  a  barrister  married  a 
lady  client,  and  undertcfok  to  draw  the  marriage  settlement, 

'  Johnson  v.  Fesemeyer,  3  De  G.  &  J.  13  ;  Smith  i".  Brotherline,  62 
Pa.  St.  461. 

2  Stockton  ;;.  Ford,  11  How.  232. 

8  Pearson  v.  Benson,  28  Beav.  598;  Morgan  v.  Higgins,  5  Jur.  (n.  s.) 
236. 

4  Moss  V.  Bainbriclge,  6  De  G.,  M.  &  G.  292;  Blagrave  v.  Routh,  2  K. 
&  J.  509. 

^  Clanricarde  v.  Henning,  30  Beav.  175. 

«  Ward  V.  Brown,  87  Mo.  468. 

7  Moore  v.  Brackin,  27  111.  23;  Smith  v.  Brotherline,  62  Pa.  St.  461. 

8  Proof  V.  Hines,  Cas.  t.  Talb.  Ill ;  Walmesiey  v.  Booth,  2  Atk.  28. 

9  Newman  j^.  Payne,  4  Bro.  Ch.  3.50;.  2  Ves.  Jr.  200;  Langstaffe  v. 
Taylor,  14  Ves.  262;  Pitcher  v.  Rigby,  9  Price,  79;  Jones  v.  Roberts,  9 
Beav.  419. 

^^  Drapers'  Company  v.  Davis,  2  Atk.  295. 

259 


§  204.]  CONSTRUCTIVE    TRUSTS.  [CHAP.  VI. 

according  to  the  stipulations  between  tliem,  it  was  held  to 
be  open  to  investigation  by  the  court.^  The  same  rules  arc 
applied  to  all  persons  standing  in  the  relation  of  attorneys  or 
confidential  advisers,  although  they  are  not  attorneys  in  fact ; 
thus  clerks  in  an  attorney's  office,  who  do  business  for  the 
client  and  obtain  a  knowledge  of  his  affairs  and  his  confi- 
dence, cannot  avail  themselves  of  their  position  to  make 
favorable  bargains  or  purchases,^  and  so  one  who  acts  as  a  con- 
fidential adviser  in  a  matter  before  a  magistrate,  where  at- 
torneys are  not  employed,  is  under  the  same  obligations  and 
disabilities.^  Of  course,  if  there  is  actual  fraud  committed  by 
an  attorney  in  a  purchase  of  a  client,  the  transaction  will  be 
summarily  dealt  with.* 

§  204.  The  same  principles  apply  to  transactions  between 
all  persons  standing  in  confidential  and  influential  relations 
to  each  other.  The  person  thus  possessing  the  confidence  of 
another,  and  having  an  influence  by  reason  of  such  confidence, 
cannot  use  his  influence  to  obtain  contracts,  conveyances,  or 
property,  and  the  burden  of  proof  is  always  on  the  part}'^  stand- 
ing in  the  position  of  influence,  to  show  the  transaction  just 
and  fair.^  Quasi  guardians,  husband  and  wife,  confidential 
advisers,  stewards,  keepers  of  asylums  in  which  the  quasi  ward 
may  have  been  treated,  and  confidential  medical  advisers,  all 
come  within  the  rule.''     But  the  mere  fact  that  the  donee  is  an 

1  Coiley  V.  Stafford,  1  De  G.  &  J.  258. 

2  Hobday  v.  Peters,  28  Beav.  340 ;  6  Jur.  (n.  s.)  794 :  Cowdry  v.  Day, 
.5  Jur.  (n.  s.)  1199;  Gardner  v.  Ogden,  22  X.  Y.  327;  Poilloii  v.  Martin, 
1  Sandf.  Ch.  569. 

3  Buffalow  I'.  Buffalow,  5  Dev.  &  Bat.  Eq.  241. 

4  Webster  v.  King,  33  Cal.  348.  ^  Holt  v.  Agnew,  67  Ala.  368. 
6  Trevelyan  v.  Charter,  9  Beav.   140,  11  CI.  &  Fin.  714;    Revett  i;. 

Harvey,  1  S.  &  S.  502;  Huguenin  v.  Baseley,  14  Ves.  273;  Gray  d.  Mans- 
field, 1  Ves.  379;  A¥right  i-.  Proud,  13  Yes.  136;  Ahearne  v.  Hogan,  1 
Dr.  310;  Billing  v.  Southee,  9  Hare,  534;  16  Jur.  188;  Crispell  f.  Dubois, 
4  Barb.  393;  Blackie  i-.  Clarke,  22  L.  J.  Ch.  377;  Whitehorn  v.  Hines, 
1  Munf.  559;  Shallcross  v.  Oldham,  2  John.  &  H.  609;  Dent  v.  Bennett, 
4  M.  &  Cr.  269 ;  Gibson  v.  Russell,  2  Y.  &  C.  N.  R.  104;  Pratt  v.  Barker, 
1  Sim.  1;  Swissholm's  App.,  56  Pa.  St  475;  Falk  v.  Turner,  101  Mass. 
494 ;  Rhodes  v.  Bate,  L.  R.  1  Ch.  252. 
2G0 


CHAP.  VI.]  ADMINISTRATORS    AND    EXECUTORS.  [§  205. 

attending  physician,  there  being  no  confidential  relation,  will 
not  avoid  a  deed.^  But  the  administrator  of  a  deceased  part- 
ner may  buy  the  partnership  property,  although  he  may  be  a 
surviving  partner.^ 

§  205.  Upon  tlie  same  principles,  administrators  and  execu- 
tors cannot  purchase  the  estate  under  their  charge  to  admin- 
ister. They  cannot  purchase  directly  of  themselves,  nor  from 
the  heirs,  legatees,  devisees,  or  other  persons  interested  in  the 
estate,^  nor  can  they  purchase  indirectly  by  procuring  a  third 
person  to  purchase  in  the  first  instance,  and  by  receiving  a 
conveyance  from  such  third  person.*  This  rule  is  so  strict, 
that  they  cannot  purchase  any  of  the  assets  of  the  estate 
under  their  charge,  although  the  assets  are  ordered  by  the 
court  to  be  sold  at  public  auction  ;  ^  and  even  where  a  cred- 

^  Doggett  V.  Lane,  12  Mo.  215. 

2  Savage  v.  Williams,  15  La.  An.  250 ;  Carter  v.  McManus,  Id.  641 ; 
Dugas  r.  Gilbeau,  Id.  581. 

^  Davoue  v.  Fanning,  2  Johns.  Ch.  252  ;  Van  Epps  v.  Van  Epps,  9 
Paige,  237;  Ward  v.  Smith,  3  Sandf.  Ch.  592;  Ames  v.  Browning,  1 
Bradf.  321;  Rogers  v.  Rogers,  3  Wend.  503  ;  Bostwick  v.  Atkins,  1  Comst. 
53;  Michoud  v.  Girod,  4  How.  504;  Drysdale's  App..  14  Pa.  St.  531; 
Moody  V.  Vandyke,  4  Binn.  31;  Beeson  v.  Beeson,  9  Barr,  279;  Winter 
r.  Geroe,  1  Halst.  Ch.  319;  Conway  v.  Green,  1  H.  &  J.  151;  Bailey  v. 
Robinson,  1  Grat.  4;  Hudson  v.  Hudson,  5  Munf.  180;  Baines  y.  McGee, 
1  Sm.  &  M.  208;  Baxter  v.  Costin,  1  Busb  Eq.  2G2;  Breckenridge  v. 
Holland,  2  Blackf.  377;  Edmunds  v.  Crenshaw,  1  McCord,  Ch.  252. 
But  in  South  Carolina  an  executor  may  purchase  the  personal  property. 
Stallings  v.  Foreman,  2  Hill,  Eq.  401;  and  so  in  Alabama,  Julian  v.  Rey- 
nolds, 8  Ala.  680;  Peyton  v.  Enos,  16  La.  An.  135;  Van  Weckle  v.  Malla, 
Id.  325;  Huston  v.  Cassidy,  2  Beas.  228;  Mulford  v.  Winch,  3  Stockt.  16; 
Culver  V.  Culver,  Id.  215;  Dugas  v.  Gilbeau.  15  La.  An.  581. 

4  Davoue  v.  Fanning,  2  Johns.  Ch.  252;  Paul  v.  Squibb,  12  Pa.  St.  206  ; 
Woodruif  v.  Cook,  2  Edw.  Ch.  259  ;  Hawley  v.  Cramer,  4  Cow.  717;  P>eau- 
bien  v.  Poupard,  Harr.  Ch.  20G ;  Buckles  v  Lafferty,  2  Rob.  292;  Hunt 
D.  Bass,  2  Dev.  Eq.  292;  Forbes  v.  Halsey,  26  N.  Y.  53;  Miles  v.  Wheeler, 
43  111.  123;  Kruse  v.  Stephens,  47  111.  112;  Smith  v.  Drake,  23  N.  J.  Eq. 
302;  Tiffany  v.  Clark,  1  N.  Y.  Sup.  Ct.  Add.  9. 

6  Wallington's  E.st.,  1  Ashm.  .307:  Beeson  v.  Beeson,  9  Barr.  279 ; 
Rham  v.  North,  2  Yeates,  117;  Jewett  v.  Miller,  10  N.  Y.  402;  Fox  r. 
Mackreth,  1  Lead.  Ca.  Eq.  1 ;  Colgate  /'.  Colgate,  23  N.  J.  Eq.  372;  Col- 
burn  V.  Morton,  1  N.  Y.  Decis.  378;  Farrar  v.  Farley,  3  S.  0.  11. 

261 


§  205.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

itor  seized  a  portion  of  the  estate  and  exposed  it  to  public 
siile,  it  was  held  that  the  executor  or  administrator  could  not 
purchase.!  So  if  an  executor  join  with  others  in  the  pur- 
chase of  the  estate  the  sale  may  be  avoided.^  If,  however, 
the  estate  is  sold  in  good  faith  to  a  stranger,  with  no  collu- 
sion between  him  and  the  executor,  there  is  nothing  to  pre- 
vent the  executor  from  purchasing  it  afterwards  like  any 
otlier  property .3  So  an  executor  may  purchase  the  interest 
of  a  third  person  in  the  estate.*  If  fraud  is  superadded  to  a 
purchase  by  an  executor,  or  any  use  of  his  situation  is  made 
to  make  a  more  favorable  purchase,  it  will  of  course  be 
avoided,  or  he  will  be  ordered  to  account  for  the  property  and 
all  the  profits  received.^  But  generally  a  purchase  of  the 
assets  of  an  estate  by  an  executor  is  not  void,  but  only  voida- 
ble, and  such  sale  may  be  confirmed  by  all  the  parties  in- 
terested in  the  estate  ;  ^  and  so  a  long  acquiescence  in  a 
purchase  made  by  an  executor,  by  all  the  heirs,  would  be  held 
to  be  a  confirmation.^  If  an  administrator  purchases  the  es- 
tate at  his  own  sale,  and  afterwards  conveys  the  estate  to  a 
third  person,  his  vendee  will  be  charged  with  notice  of  the  de- 
fect of  title,  as  it  would  be  apparent  upon  the  face  of  the  deed.^ 

1  Spindler  v.  Atkinson,  3  Md.  410:  Fleming  v.  Teran,  12  Ga.  394; 
Wyncoop  v.  Wyncoop,  12  Ind.  206.  But  the  contrary  rule  was  held  in 
Fisk  V.  Sarber,  6  Watts  &  S.  18;  Prevost  v.  Gratz,  1  Pet.  C.  C.  364;  Camp- 
bell V.  Johnson,  1  Sandf.  Ch.  148;  Bank  of  Orleans  v.  Torrey,  7  Hill,  260. 

2  Mitchum  v.  Mitchum,  3  Dana.  260;  Paul  v.  Squibb,  12  Pa.  St.  296. 
2  Silverthorn  v.  McKinister.  12  Pa.  St.  67. 

*  Alexander  v.  Kennedy,  3  Grat.  379. 

6  Vanhorn  v.  Fonda,  5  Johns.  Ch.  388;  Hudson  v.  Hudson,  5  Munf. 
180. 

6  Harrington  v.  Brown,  5  Pick.  519;  Bruch  v.  Lantz,  2  Rawle,  392 
Pennock's  App.,  14  Pa.   St.  446;  Longworth  v.   Goforth,  Wright,  192 
Dnnlap  v.  Mitchell,  10  Ohio,  117;  Williams  v.  Marshall,  4  G.  &  J.  377 
Moore  v.  Hilton,  12  Leigh,  2;  Scott  v.  Freeland,  7  Sm.  &  M.  410;  Lyon 
V.  Lyon,  8  Ired.  Eq.  201. 

■^  Jennison  v.  Hapgood,  7  Pick.  1;  Hawley  v.  Cramer,  4  Cow.  719; 
Ward  V.  Smith,  3  Sandf.  Ch.  592;  Baker  v.  Read,  18  Beav.  398;  Mussel- 
man  V.  Eshelman,  10  Barr,  394  ;  Bell  v.  Webb,  2  Gill,  164;  Todd  i'.  Moore, 
1  Leigh,  457. 

«  Lazarus  v.  Bryson,  3  Binn.  59;  Ward  v.  Smith,  3  Sandf.  592;  Smith 
V.  Drake,  23  N.  J.  Eq.  302;  Potter  v.  Pearson,  60  Me.  220. 

262 


CHAP.  VI.]  PRINCIPAL    AND    AGENT.  [§  206. 

But  if  the  administrator  should  coUusively  convey  to  a  third 
person  and  take  back  a  deed  from  him,  and  then  himself  sell, 
the  purchaser  would  not  probably  be  charged  with  notice 
unless  he  had  actual  notice.^ 


§  206.  The  relation  of  principal  and  agent  is  a  fiduciary 
one,  and  the  same  observations  apply  as  to  other  relations  of 
trust  and  confidence.  Some  have  doubted  whether  it  would 
not  have  been  wiser  to  have  prohibited  all  contracts  between 
parties  sustaining  these  relations  to  each  other,  and  to  have 
thus  taken  away  all  temptation  to  abuse  the  trust,  rather 
than  to  investigate  each  case  as  it  arises.^  But  perhaps  the 
entire  freedom  of  trade  and  business,  and  the  convenience  of 
society,  demand  that  there  should  be  at  least  the  possibility 
of  dealing  between  persons  bearing  these  relations,  and  thus 
there  is  no  absolute  prohibition.  The  principal  may  buy  and 
sell  of  the  agent,  and  he  may  make  an  agent  the  object  of 
his  bounty,  but  there  must  be  the  utmost  good  faith  and 
frankness  in  the  dealing.^  The  principal  is  entitled  to  the 
best  skill  and  judgment  of  his  agent  in  the  conduct  of  his 
affairs.  If  at  the  same  time  the  agent  is  at  liberty  to  pur- 
chase the  property  of  his  principal,  there  would  be  such  a 
conflict  between  his  duty  and  his  interest,  that  there  could 
be  no  safety  in  business.  An  agent,  therefore,  if  he  purchases 
property  of  his  principal,  must  communicate  fully  and  truly 
every  fact  in  relation  to  such  property  within  his  knowledge  ; 
and  he  must  also  be  known  as  the  purchaser,  for  if  he  acts 
secretly  the  contract  will  certainly  be  held  to  be  fraudulent ; 
and  so  if  he  is  employed  to  purchase  for  another  and  he  pur- 

1  Johnson  v.  Bennett,  39  Barb.  237. 

2  Dunbar  v.  Tredennick,  2  B.  &  B.  319;  Norris  v.  La  Neve,  3  Atk.  38; 
Fairman  v.  Bavin,  29  111   75. 

8  Selsey  v.  Rhoades,  2  S.  &  S.  49;  1  Bligh,  1;  Kerr  v.  Dungannon,  1 
Dr.  &  W.  509,  541;  Huguenin  v.  Basejey,  14  Ves.  273;  Molony  v.  Kernan, 
2  Dr.  &  W.  31;  Harris  v.  Trenienheere,  15  Ves.  40;  Winchelsea  ii.  Gar- 
rety,  1  M.  &  K.  253;  Benson  v.  Heatham,  1  Y.  &  C.  N.  R.  32G;  Neeley  v. 
Anderson,  2  Strob.  Eq.  262;  Brooke  o.  Berry,  2  Gill,  83  ;  Persch  v. 
Quiggle,  57  Pa.  St.  247. 

263 


§  20G.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VT. 

chases  for  himself,  he  will  be  held  to  be  a  trnstee.i  No  person 
whose  duty  to  another  is  inconsistent  with  his  taking  an  abso- 
lute title  to  himself  will  be  permitted  to  purchase  for  himself. 
For  no  one  can  hold  a  benefit  acquired  by  fraud  or  a  breach 
of  his  duty .2  All  the  knowledge  of  the  agent  belongs  to  the 
principal  for  whom  he  acts,  and  if  the  agent  use  it  for  his  own 
benefit,  he  will  become  a  trustee  for  his  prmcipal.^  Whenever 
one  person  is  placed  in  a  relation  to  another,  by  the  act  or 
consent  of  that  other,  or  the  act  of  a  third  person,  or  of  the 
law,  so  that  he  becomes  interested  for  him  or  with  him  in  any 
subject  of  property  or  business,  he  will  in  equity  be  prohibited 
from  acquiring  rights  in  that  subject  antagonistic  to  the  per- 
son with  whose  interest  he  has  been  associated.*  Therefore, 
whatever  an  agent  may  be  employed  to  do,  he  cannot  use  his 
position  nor  the  knowledge  obtained  by  his  employment  to 
obtain  a  bargain  from  his  principal.  Nor  can  he  take  advan- 
tage of  his  own  negligence ;  as  where  an  agent  allowed  his 

1  Lees  V.  Nuttall,  1  R.  &  M.  53;  Taml.  282;  Church  v.  Marine  Tns.  Co., 
1  Mason,  341 ;  Crowe  v.  Ballard,  3  Bro.  Ch.  120 ;  Barker  v.  Ins.  Co.,  2 
Mason,  369;  Massey  l'.  Davies.  2  Ves.  Jr.  318;  Woodhouse  v.  Meredith, 
1  J.  &  W.  204;  Purcell  v.  Macnaraara,  14  Ves.  91  ;  Wott  v.  Grove,  2  Sch. 
&  Lef.  492;  Lowther  v.  Lowther,  13  Ves.  102;  Green  v.  Winter,  1  Johns. 
Ch.  27;  Morret  v.  Paske,  2  Atk.  53;  Coles  v.  Treeothick,  9  Ves.  246  ; 
Parkist  v.  Alexander,  1  Johns.  Ch.  394;  Gray  v.  Mansfield,  1  Ves.  379; 
Belt,  Suppl.  1«7;  Fox  v.  Mackreth,  2  Bro.  Ch.  400;  2  Cox,  320;  1  Lead. 
Ca.  Eq.  92,  and  notes  ;  Dennis  v.  McCoy,  32  111.  429  ;  Safford  v.  Hinds, 
39  Barb.  625:  8quire"s  App.,  70  Pa.  St.  268. 

'•^  Reed  v.  Warner,  5  Paige,  650  ;  Sweet  r.  Jacocks,  6  Paige,  355 ;  Lees 
V.  Xuttall,  1  R.  &  M.  53;  Torrey  v.  Bank  of  Orleans,  6  Paige,  650; 
Greenfield's  Est.,  2  Harris,  489  ;  Sheriff  v.  Neal,  6  Watts,  534 ;  Plumer  v. 
Reed,  2  Wright,  46;  Hoge  v.  Hoge,  1  "Watts,  163;  Swartz  v.  Swartz,  4 
Barr,  353 ;  Harrold  v.  Lane,  3  Pa.  St.  268 ;  Jenkins  v.  Eldredge,  3  Story, 
181;  Morris  v.  Nixon,  1  How.  118;  Seichrist's  App.,  66  Pa.  St  237; 
Squire's  App.,  70  Pa.  St.  268 

3  Gillett  r.  Peppercorne,  3  Beav.  78 ;  Taylor  v.  Salmon,  2  Mee.  &  Comp. 
139  ;  4  M.  &  C.  139  ;  Voorhees  v.  Church,  8  Barb.  136 ;  Van  Epps  v.  Van 
Epps,  9  Paige.  237;  Torrey  v.  Bank,  &c.,  Id.  649;  Cram  v.  Mitchell,  1 
Sandf.  251 ;  Dob.son  v.  Racey,  3  Sandf.  61  ;  Reed  v  Norris,  2  M.  &  Cr. 
361;  Ringo  v.  Binns,  10  Pet.  269;  Farnham  v.  Brooks,  9  Pick.  212; 
Davis  V.  Hamlin,  108  111.  39. 

4  Davis  tv  Hamlin,  108  111.  39  ;  Allen  v.  Jackson,  122  lU.  567. 

264 


CHAP.  VI.]  PRINCIPAL    AND    AGENT.  [§  206. 

principal's  property  to  be  sold  for  taxes  and  bought  it  himself, 
he  was  held  as  a  trustee,  although  the  relation  of  principal  and 
agent  had  ceased.^  In  some  cases  he  may  innocently  pur- 
chase of  his  principal ;  but  if  he  conceals  himself  and  acts 
tlirough  another,  either  in  purchasing  from  or  selling  to  his 
principal,  he  may  be  held  as  a  trustee,  or  the  contract  may  be 
entirely  avoided  ;  ^  or  if  he  accepts  any  benefits  in  conducting 
the  business  of  his  principal,  he  will  hold  them  in  trust  for 
him,^  or  if  he  makes  use  of  his  position  in  any  way  to  obtain 
a  title  to  himself.*  If  in  matters  within  the  purposes  of  his 
agency  he  takes  a  conveyance  in  his  own  name,  he  is  a  trustee 
ex  maleficio,^  as  if  he  buys  a  tax  certificate  for  his  principal 
and  then  takes  the  deed  in  his  own  name.*^  And  where  one 
partner  C.  gets  a  lease  of  the  premises  in  his  father's  name 
when  the  other  partner  D.  had  a  right  to  expect  he  would  se- 
cure a  joint  lease  for  the  partnersliip,  C.'s  father  holds  in  trust 
not  only  for  C.  but  for  D.  also.'^  So  if  he  buys  for  himself  and 
liis  partner  the  land  whicli  he  was  engaged  to  buy  for  the  plain- 
tiff, and  has  the  deed  made  to  his  partner  and  pays  the  money 
from  his  own  funds,  still  a  trust  will  result,  and  the  payment 
will  be  considered  only  as  a  loan,  on  security  of  the  title.^ 
But  where  one  breaks  a  mere  parol  agreement  to  buy  land  for 

1  Morris  v.  Joseph,  1  West  Va.  2.56. 

2  Winn  V.  Dillon,  27  Miss.  494;  Lewis  v.  Hillman,  .3  H.  L.  Cas.  629; 
Parkist  v.  Alexander,  1  Johns.  Ch.  394;  Sweet  v.  Jacocks,  6  Paige,  .364; 
Bank  of  Orleans  c.  Torrey,  7  Hill,  260;  9  Paige,  653  ;  Myer's  App.,  2  Barr, 
463 ;  Rankin  v.  Porter,  7  Watts,  387 ;  Piatt  v.  Oliver,  2  McLean,  267 ;  3 
How.  3.53;  Church  i'.  Ins.  Co.,  1  Mason,  341;  Teakle  ?'.  Barley,  2  Brock. 
44;  Oldham  v.  Jones,  5  B.  Mon.  467;  Banks  v.  Judah,  8  Conn.  146;  Cope- 
land  V.  Ins.  Co  ,  6  Pick.  198;  McGregor  v.  Gardner,  14  Iowa,  326  ;  Clark  r. 
Lee,  Id.  425. 

8  Bailey  v.  Watkins,  Sug.  Law  of  Prop.  726  ;  Gaskell  v.  Chambers,  26 
Beav.  360. 

*  Smith  V.  Wright,  49  111.  403. 

6  Squire's  App.,  70  Pa.  St.  268;  McMnrry  ?>.  Mobley,  39  Ark.  313; 
Vallette  v.  Tedens,  122  111.  607;  Byington  v.  Moore,  62  Iowa,  470; 
Kraemer  v.  Deustermann,  37  Minn.  469. 

*  Collins  V.  Rainey,  42  Ark.  531. 

'  Gushing  V.  Danforth,  76  Me.  114. 

*  Bryan  v.  McNaughton,  38  Kan.  98. 

265 


§  207.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

another  and  buys  it  himself,  there  is  no  trust,  but  only  a 
breach  of  parol  contract.^  The  test  is  whether  the  act  is  in- 
consistent with  duties  resulting  from  a  relation  of  confidence 
between  the  parties.^ 

§  207.  The  directors  of  corporations  are  trustees  and 
agents  of  the  shareholders  and  of  the  corporation,  and  the 
same  rules  are  applied  to  the  contracts  of  directors  with  the 
corporation,  as  are  applied  to  the  dealings  of  other  parties 
holding  a  fiduciary  relation  to  each  other.^  The  directors 
are  intrusted  with  the  management  of  the  property  of  the 
corporation  for  the  best  interests  of  all  the  members,  and  the 
directors  are  bound  to  execute  their  trust;  nor  must  they 
allow  their  private  interests  to  interfere  with  the  duties  of 
the  trust  that  they  have  assumed,  nor  assume  a  position 
tending  to  produce  a  conflict  between  their  private  interests 
and  the  discharge  of  their  fiduciary  duties.*     It  is  said  that 

1  Hackney  v.  Butts,  41  Ark.  394.     See  §  134. 

2  Farley  v.  Kittson,  27  Minn.  102  at  105. 

3  Gaskell  v.  Chambers,  26  Beav.  360;  Great  Luxembourg  R.  Co.  v. 
]\Iagnay,  586;  Ex  parte  Bennt'tt,  18  Beav.  339;  Cumberland  Coal  Co.  v. 
Hoffman  Steam  Coal  Co.,  18  Md.  456  ;  Cumberland  Coal  Co.  v.  Sherman, 
30  Barb.  553  ;  25  Md.  117 ;  Aberdeen  R.  Co.  v.  Blaikie,  1  McQueen,  461 , 
Michoud  V.  Girod,  4  How.  544;  Hodges  v.  New  Eng.  Screw  Co.,  1  R.  I. 
321  ;  York  &  North  Midland  R.  Co.  i'.  Hudson,  16  Beav.  485 ;  19  Eng.  L. 
&  Eq.  365  ;  Benson  v.  Heathorne,  6  Y.  &  C.  C.  C.  326;  Verplanck  v.  Ins. 
Co.,  1  Edw.  Ch.  84;  Percy  v.  Milladon,  3  La.  568  ;  Robinson  v.  Smith,  3 
Paige,  222  ;  Murray  v.  Vanderbilt,  39  Barb.  237  ;  Flint,  &c.  R.  R.  Co.  v. 
Dewey,  14  Mich.  477 ;  European  &  N.  Am.  Railw.  Co.  v.  Poor,  69  Me.  277 ; 
Scott  V.  Depeyster,  1  Edw.  Ch.  513;  Butts  v.  Wood,  38  Barb  188; 
Ashurst's  App  ,  60  Pa.  St.  290;  Drury  v.  Cross,  7  Wall.  299;  Sawyer  v. 
Hoag,  17  Wall.  610;  Land  Credit  Co.  v.  Fermoy,  L.  R.  8  Eq.  12;  Bank 
Com'rs  V.  Bank  of  Buffalo,  6  Paige,  503. 

4  It  is  a  breach  of  trust  for  raih'oad  directors  to  assume  inconsistent 
nblicrations  by  becoming  members  of  a  company  with  whom  they  have 
made  a  contract  to  build  and  equip  their  road ;  and  in  such  case  no  ques- 
tion will  be  allowed  to  be  raised  as  to  the  fairness  of  the  transaction,  and 
no  injury  to  the  cestui  que  trust  need  be  proved.  Gilman  C.  &  S.  R.  R. 
Co.  V.  Kelly,  77  111.  426.  But  where  .stockholders  sanction  a  contract 
under  which  directors  loan  money  to  tlie  corporation,  and  its  bonds 
secured  by  mortgage  are  given,  if  the  money  is  properly  applied,  the  cor- 

266 


CHAP.  YI.]  PRINCIPAL    AND    AGENT.  [§  207. 

the  contracts  of  trustees  are  of  two  classes.  One  class  con- 
sists of  contracts  made  by  trustees  with  themselves,  or  with 
a  board  of  trustees  or  directors  of  which  they  are  members. 
These  contracts  are  void  from  the  fact  that  no  man  can  con- 
tract with  himself.  If,  therefore,  a  board  of  directors  should 
convey  all  the  property  of  a  corporation  to  themselves,  the 
conveyance  would  be  void,  without  any  inquiry  into  its  fair- 
ness, or  whether  it  was  beneficial  to  the  corporation  or  not. 
And  the  same  rule  applies  if  a  board  of  directors  convey  the 
property  of  a  corporation,  or  any  part  of  it,  to  one  of  their 
number,  he  being  one  of  the  trustees  negotiating  a  contract 
with  himself.^  And  the  same  rule  was  applied  where  the 
trustees  of  one  corporation,  being  the  trustees  of  another 
corporation,  conveyed  the  property  of  the  one  corporation  to 
another,  although  there  was  a  decree  of  court.^  The  other 
class  of  contracts  is  where  a  trustee  contracts  with  the  cestui 
que  trust,  or  a  third  person.  These  contracts  xire  not  void  ; 
as  where  a  director  makes  a  purchase  of  property  from  the 
corporation  itself,  acting  independently  of  its  directors,  the 
contract  is  not  void ;  but  the  same  rules  apply,  that  apj)Iy  to 
other  trustees  purchasing  of  the  cestui  que  trust :  the  burden 
is  upon  the  trustee  to  vindicate  the  transaction  from  all  sus- 
picion.3  And  so  all  advantages,  all  purchases,  all  sales,  and 
all  sums  of  money  received  by  directors  in  dealing  with  the 
property  of  the  corporation,  are  made  and  received  by  them 
as  trustees  of  the  corporation,  and  they  must  account  for  all 

poration  is  estopped  from  setting  up  that  tlie  bonds  and  mortgage  are 
void  by  reason  of  the  trust  relations  which  directors  sustain  to  it  Hotel 
Co.  V.  Wade,  97  U.  S.  75.  A  director  who  receives  paid-up  shares  from 
the  promoters  of  the  corporation  for  acting  as  director  will  hold  as 
trustee,  and  may  be  required  to  pay  the  highest  value  of  the  shares  at 
the  election  of  the  company.  Nant-y-Glo  &  Blaina  Iron  Works  Co.  v. 
Grave,  L.  R.  12  Ch.  7:j8. 

^  Cimber  and  Coal  Co.  v.  Sherman,  30  Barb.  563;  Ogden  v.  Murray, 
39  N.  Y.  202;  Bliss  v.  Matteson,  45  N.  Y.  22;  Buffalo,  &c.  R.  R.  Co.  v. 
Lampson,  47  Barb.  533;  Imperial  Mer.  Cred.  Ass'n  v.  Coleman,  L.  R.  6 
Ch.  565. 

2  St.  James  Church  v.  Church  of  the  Redeemer,  45  Barb.  356. 

8  Ibid.;  Beeson  v.  Beeson,  9  Pa.  St.  283. 

267 


§  208.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

such  moneys,  or  advantages  received  by  them  by  reason  of 
their  position  as  trustees.^ 

§  208.  Again,  if  the  parents,  relations,  agents,  or  "friends 
of  young  persons  hold  out  inducements  of  marriage  by  repre- 
senting the  amount  of  property  that  will  come  to  one  or  the 
other  of  the  parties ;  or  if  they  hold  out  pecuniary  consider- 
ations to  induce  the  marriage,  and  if  the  marriage  and  a 
marriage  settlement  take  place  upon  the  faith  of  such  repre- 
sentations and  inducements,  the  persons  making  them  will  be 
bound  to  make  them  good :  if  the  persons  making  the  repre- 
sentations and  holding  out  the  inducements  have  the  property 
referred  to  in  their  hands  or  under  their  control,  a  court  of 
equity  will  construe  them  into  trustees  of  such  property  for 
the  parties  to  whom  the  inducements  were  held  out ;  and  the 
court  will  compel  them  to  execute  the  trust  by  making  good 
the  representations  or  inducements,  if  they  are  of  such  a 
character  that  a  party  entering  into  a  marriage  might  reason- 
ably have  relied  upon  them.'-^  If,  however,  a  person  states  his 
intention  to  confer  property  upon  one  of  the  parties  to  a  mar- 
riage, as  that  he  has  made  his  will  giving  a  certain  estate  to 
one  of  the  parties,  and  that  he  does  not  know  any  reason,  or 
have  any  intention  of  altering  it,  but  at  the  same  time  refuses 
to  make  any  contract  or  agreement,  or  to  be  bound  in  any 
way  not  to  alter  his  will,  equity  will  not  compel  the  execution 
of  such  a  representation  or  intention ;  and  the  estate  named 
cannot  be  affected  by  a  constructive  trust  in  favor  of  the 
party  to  the  marriage,  in  case  the  will  is  afterwards  altered, 
and  the  estate  is  given  to  some  other  person.^ 

1  Gaskell  V.  Chambers,  26  Beav.  360,  Bowers  r.  City  of  Toronto,  11 
Moore,  P.  C.  Gas.  463;  Ex  parte  Hill,  .'.•i  L.  J.  Ch.  154. 

2  Hamerslpy  v.  De  Biel,  12  CI.  &  Fin.  4'^;  Downes  v.  Jennings,  32 
Beav.  290;  Hunt  v.  :Mathews,  1  Vern.  408;  Walford  v.  Gray,  11  Jur. 
(n.  s  )  106,  403;  Jordan  v.  Money,  5  H.  L.  Cas.  185;  8  Jur.  (n.  s.)  281; 
Caton  V.  Caton,  L.  R.  2  H.  L.  127;  Coverdale  r.  Eastwood,  L.  R.  15 
Eq.  122;  Saunders  v.  Cramer,  3  Dr.  &  War.  87;  Moorhonse  »-.  Calvin, 
15  Beav.  341;  Laver  v.  Fielder,  32  Beav.  1  ;  1  Story's  Eq.  Jur.  §§268- 
272. 

8  Maunsell  v.  Hedges,  4  H.  L.  Cas.  1039;  1  Lead.  Ca.  Eq.  782;  Kay 

268 


CHAP.  VI.]  TRUSTEES    OF    CORPORATIONS.  [§  209. 

§  209.  These  rules  apply  to  every  kind  of  fiduciary  relation. 
The  principle  is  the  same  in  all  of  them.  Assignees  of  bank- 
rupt or  insolvent  estates  are  subject  to  the  same  rules,  whether 
they  are  appointed  by  courts  and  by  operation  of  law,  or  by 
voluntary  assignments,  or  by  deeds  of  trust  for  creditors.^ 
So  the  solicitors  of  a  bankrupt  cannot  purchase  his  property. 
Committees  or  guardians  of  a  lunatic  cannot  obtain  the 
ownership  of  the  property ,2  nor  can  the  directors,  trustees,  or 
governors  of  a  charity  so  deal  with  the  funds  of  the  charity, 
or  take  leases  of  the  charity  lands,  as  to  maT^e  a  profit  to 
themselves.^  And  so  of  partners  and  joint  contractors,  or 
purchasers  and  receivers.  In  all  these  cases  the  fiduciary 
must  account  for  all  the  trust  property  that  comes  to  his 
hands,  whether  by  purchase  or  otherwise,  and  for  all  profits 
which  may  come  to  him  by  dealing  with  such  property,  and 
even  for  all  bonuses  or  gratuities  given  to  him  by  strangers 
for  contracts  made  with  them  in  relation  to  the  trust  property.* 
For  example,  a  bank  officer  cannot  make  a  profit  for  himself 
by  loaning  the  bank's  money,  but  will  have  to  bear  all  losses 
arising  from  the  attempt.^  Whenever  two  persons  stand  in 
such  relation  that  confidence  is  necessarily  reposed  by  one, 
and  the  influence  growing  out  of  that  fact  is  possessed  by  the 
other,  and  this  confidence  is  abused  or  the  influence  is  exerted 

V.  Crook,  3  Sm.  &  Gif.  407;  Stronghill  v.  Gulliver,  2  Jur.  (n.  s.)  700; 
Randall  v.  Morgan,  12  Ves.  67;  De  Biel  v.  Thompson,  3  Beav.  469,  475; 
1  Jon.  &  La.  539,  569. 

1  Ex  parte  Hughes,  6  Ves.  617;  Morse  v.  Royal,  12  Ves.  372;  Ex  parte 
Morgan,  Id.  6;  Ex  parte  Lacey,  6  Ves.  625;  Ex  parte  Reynolds,  5  Ves. 
707;  Ex  parte  Bennett,  10  Ves.  381;  Campbell  v.  McLain,  23  Leg.  Intel. 
26,  Phila. ;  Fisk  v.  Sarber,  6  W.  &  S.  18;  Beeson  v.  Beeson,  9  Barr,  284; 
Dorsey  v.  Dorsey,  3  H.  &  J.  410 ;  Chapin  r.  Weed,  1  Clark,  264 ;  Salt- 
marsh  V.  Beene,  4  Porter,  283;  Harrison  v.  Mocks,  10  Ala.  185;  Wade  v. 
Harper,  3  Yerg.  383. 

2  Wright  V.  Proud,  13  Ves.  136;  Campbell  v.  McLain,  51    Pa.  St.  200; 
2  Attorney- General  v.  Clarendon,  17  Ves.  500. 

*  Bailey  v.  Watkins,  Sug.  Law  of  Prop.  726;  Parsball's  App.,  65  Pa. 
St.  233;  Swissholm's  App.,  56  Pa.  St.  475;  King  v.  Wise,  43  Cal.  628; 
Carr  v.  Houser,  46  Ga.  477. 

6  Oakland  Bank  of  Savings  i'.  Wilcox,  60  Cal.  126.  See  also  Dowling 
V.  Feeley,  72  Ga.  557. 

269 


§  210.]  CONSTRUCTIVE   TRUSTS.  [CHAP,  VI. 

to  obtain  an  advantage  at  the  expense  of  the  confiding  party, 
the  party  so  availing  himself  of  his  position  will  not  be  per- 
mitted to  retain  the  advantage.^  Trustees  cannot  use  their 
relations  to  the  trust  property  for  their  personal  advantage.^ 

§  210.  But  equity  goes  even  further  than  this.  It  not  only 
watches  over  these  defined  relations  of  parties,  but  it  scruti- 
nizes the  undefined  relations  of  friendly  habits  of  intercourse, 
personal  reliance,  and  confidential  advice.^  It  is  well  known 
that  habits  of  kindness,  confidence,  and  trust  grow  between 
neighbors  and  friends ;  and  if  advantage  is  taken  of  such  re- 
lations to  obtain  an  unfair  bargain,  equity  will  set  it  aside  or 
convert  the  offending  party  into  a  trustee.^  Of  course  no  rules 
can  be  laid  down  by  which  to  judge  all  such  cases ;  for  every 
case  must  of  necessity  depend  upon  its  own  facts.^  Nor  will 
a  gift  or  sale  be  set  aside  merely  because  it  is  to  a  confiden- 
tial friend  or  adviser,  even  though  it  is  made  by  an  old  and 
infirm  person,  or  by  one  of  weak  mind ;  but  if  there  is  any 
proof  of  any  superadded  concealment,  misrepresentation,  or 
contrivance,  or  any  art  by  which  the  party  was  thrown  off 
his  guard,  or  unduly  influenced  by  his  trust  and  confidence 
in,  or  partiality  for  a  supposed  friend,  equity  will  interpose 
and  correct  the  wrong.^  Dealings  of  ship-owners  with  their 
masters,'^  of  parishioners  with  their  clergymen,^  of  medical 
advisers  with  their  patients,^  of  friends  and  neighbors  who 

1  Rohm  c.  Bohm,  9  Col.  100. 

2  Ellicott  V.  Cliamberlin,  38  N.  J.  Eq.  604. 

8  Hunter  v.  Atkins,  3  M.  &  K.  140;  James  v.  Holmes,  8  Jur.  (n.  s.) 
553,  732;  Falk  v.  Turner,  101  Mass.  194. 

4  Ibid.;  Dent  v.  Bennett,  4  M.  &  Cr.  277;  Smith  v.  Kay,  7  H.  L.  Cas. 
7.50. 

5  Hunter  v.  Atkins,  3  M.  &  K.  140. 

6  Dent  V.  Bennett,  7  Sim.  539;  4  M.  &  C  269;  Huguenin  v.  BaseW, 
14  Ves.  273;  Gibson  v.  Russell,  2  N.  C.  C.  104;  Griffiths  v.  Robins,'3 
Madd.  191;  Popham  v.  Brooke,  5  Russ.  8;  Maul  v.  Reder,  51  Pa.  St.  377; 
Lengenfitter  v.  Ritching,  58  Pa.  St.  487. 

■^  Shallcross  v.  Oldham,  2  John.  &  H.  609. 

8  Greenfield's  Estate,  24  Pa.  St.  232 ;  Scott  v.  Thompson,  21  Iowa,  599. 

9  Pratt  V.  Barker,  1  Sim.  1;  4  Russ.  507;  Crisspell  v.  Dubois,  4  Barb. 
393;  Billing  v.  Southee,  10  Eng.  L.  &  Eq.  37. 

270 


CHAP.  VI.]  FRAUDS    OP   THIRD    PERSONS.  [§  212. 

by  their  situation  and  habits  of  intercourse  have  obtained  the 
confidence  of  each  other,^  and  of  a  man  and  woman  living- 
together  as  husband  and  wife,^  come  within  this  rule.  And 
so  the  relation  of  landlord  and  tenant,  partner  and  partner, 
principal  and  surety,  and  tenants  in  common  may  create  such 
influences  of  trust  and  confidence  that  courts  of  equity  will 
construe  a  trust  to  arise  out  of  their  contracts,  or  will  decree 
such  contracts  to  be  set  aside.^ 

§  211.  So  property  obtained  by  one  through  the  fraudulent 
practices  of  a  third  person  will  be  held  under  a  constructive 
trust  for  the  person  defrauded,  though  the  person  receiving 
the  benefit  is  innocent  of  collusion.  If  such  person  accepts 
the  property,  he  adopts  the  means  by  which  it  was  procured ; 
or,  as  Lord  Ch.  Justice  Wilmot  said,  "  Let  the  hand  receiv- 
ing the  gift  be  ever  so  chaste,  yet  if  it  comes  through  a  pol- 
luted channel,  the  obligation  of  restitution  will  follow  it."* 
This  principle  of  course  cannot  prevail  against  a  purchaser 
in  good  faith  for  a  valuable  consideration,  and  without  notice 
of  any  fraudulent  influence. 

§  212.  So  a  contract  intended  to  defraud  third  persons,  who 
are  not  parties  to  it,  will  be  set  aside,  or  a  trust  will  be  de- 
clared for  such  third  persons.^  Thus,  if  property  is  conveyed 
by  a  debtor  for  the  purpose  of  defrauding  his  creditors,  the 

1  Hunter  v.  Atkins,  3  M.  &  K.  113;  Greenfield's  Estate,  14  Pa.  St. 
489;  Cooke  v.  Lamotte,  15  Beav.  234;  Smith  v.  Kay,  7  H.  L.  Cas.  750. 

2  James  v.  Holmes,  8  Jur.  (n.  s.)  553,  732;  4  De  G.,  F.  &  J.  470. 

8  Maddeford  u.  Austwick,  1  Sim.  89  ;  Farnham  v.  Brooks,  9  Pick.  212; 
Oliver  v.  Court,  8  Price,  127;  Griffiths  v.  Robins,  3  Madd.  191;  People  v. 
Jansen,  7  Johns.  332;  2  Johns.  554;  Dawson  v.  Lawes,  Kay,  280;  Camp- 
bell V.  Moulton,  30  Vt.  667;  Boultbee  v.  Stubbs,  18  Ves.  23;  Ex  parte 
Rushforth,  10  Ves.  409;  Hayes  v.  Ward,  4  Johns.  Ch.  123;  Mayhew  w. 
Crickett,  2  Swanst.  186;  Keller  v.  Auble,  58  Pa.  St.  412;  Mandeville  v. 
Solomon,  33  Cal.  38  ;  Duff  v.  Wilson,  72  Pa.  St.  442. 

*  Bridgman  v.  Green,  2  Ves.  627;  Wilm.  58,  64;  Luttrell  v.  Olmius, 
cited  11  Ves.  638;  14  Ves.  290;  Ilugueiiin  v.  Baseley,  Id.  289;  Graves  v. 
Spier,  58  Barb.  349;  Newton  v.  Porter,  5  Lansing,  417.  But  see  Dixon 
V.  Caldwell,  15  Ohio,  412. 

6  See  §  171. 

271 


§  213.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

conveyance  is  void  at  law,  and  in  some  cases  equity  will  con- 
strue it  to  create  a  trust  for  tlie  creditors.^  And  so  if  in  an 
arrangement  and  composition  of  creditors  with  the  debtor, 
one  of  them  secretly  obtains  an  extra  advantage  for  execut- 
ing the  composition  deed,  he  will  be  converted  into  a  trustee 
by  reason  of  the  fraud,  and  the  agreement  will  be  null  and 
void.2  Again,  a  transfer  in  fraud  of  a  wife,  it  being  intended 
to  prevent  her  from  obtaining  alimony,  might  raise  a  con- 
structive trust  in  favor  of  the  wife.^  In  this  connection  it 
must  be  noted  that  on  the  same  facts  there  is  a  decided  dif- 
ference as  to  the  manner  in  which  equity  will  treat  persons 
standing  in  differing  relations  to  those  facts.  In  favor  of  the 
person  defrauded  a  trust  will  be  raised  by  law,  but  in  favor  of 
the  fraudulent  grantor  none  ;  although  if  there  is  an  express 
trust  in  favor  of  the  grantor  the  trustee  will  not  be  excused 
from  performance  by  showing  that  the  transaction  was  a 
fraud  on  some  third  person.'* 

§  213.  If  a  man  or  woman  on  the  point  of  marriage  pri- 
vately .convey  away  his  or  her  property  for  the  purpose  of 
depriving  the  intended  husband  or  wife  of  the  legal  rights 
and  benefits  arising  from  such  marriage,  equity  will  avoid 
such  conveyance  or  compel  the  person  taking  it  to  hold  the 
property  in  trust,  or  subject  to  the  rights  of  the  defrauded 
husband  or  wife.^     But  such  conveyance  is  not  void  at  law 

1  Loomis  V.  Lift,  16  Barb.  .543;  Jones  v.  Reeder,  22  Ind.  111.  See  1 
Story's  Eq   Jur.  §§  350-381 ;  Buck  v.  Voreis,  89  Ind.  116. 

2  Chesterfield  v.  Janssen,  2  Ves.  156;  15  Ves.  52;  Mann  v.  Darlington, 
15  Pa.  St.  310;  Case  v.  Gerrish,  15  Pick.  50;  Ramsdell  v.  Edgarton,  8 
Met.  227;  Lothrop  v.  King,  8  Cush.  382;  Partridge  v.  Messer,  14  Gray, 
ISO;  Kahn  v.  Gunherts,  9  Ind.  430;  Spooner  v.  Whiston,  8  Moore.  5S0; 
Mallalieu  v.  Hodgson,  16  Ad.  &  El.  N.  R.  689-715;  Turner  v.  Hoole, 
Dowl.  &  Ry.  N.  P.  27;  Smith  v.  Cuff,  6  M.  &  S.  160;  Horton  v.  Riley, 
11  M.  &  W".  492;  Alsager  v.  Spalding,  6  Scott,  204;  Arnold,  181;  4  Bing. 
N.  C.  407;  Leicester  v.  Rose,  4  East,  380;  Howden  r.  Haight.  11  Ad.  & 
El.  1038;  Fawcett  v.  Gee,  3  Anst.  910;  Breck  v.  Cole,  4  Sandf.  83, 
Knight  V.  Hunt,  5  Bing.  433;  Bliss  v.  ^latteson,  45  N.  Y.  24. 

8  Tyler  v.  Tyler,  25  Brad.  111.  333. 

4  Ibid.;  Fast  v.  McPherson,  98  111.  496. 

5  Hunt  V.  Mathews,  1  Vern.  408;  England  v.  Downes,  2  Beav.  522; 

272 


CHAP.  VI.]  CONVEYANCE   BEFORE   MARRIAGE.  [§  213, 

unless  there  is  an  actual  fraud. ^  Nor  will  such  conveyance 
be  avoided,  if  made  for  a  good  consideration ;  ^  or  for  a  valu- 
able consideration  ;^  or  with  the  knowledge  or  concurrence  of 
the  other  party,  although  an  infant ;  ^  and  the  party  alleging 
fraud  must  prove  it  to  the  satisfaction  of  the  court.^  For  the 
same  reasons  a  conveyance  by  a  husband  during  the  pendency 
of  a  divorce  suit  on  the  part  of  his  wife,  in  order  to  avoid  the 
payment  of  alimony,  will  be  held  to  be  fraudulent  and  void.'' 
If  an  intended  husband  has  no  knowledge  of  the  particular 
property  conveyed,  and  the  negotiations  for  the  marriage  have 

Ball  w.  Montgomery,  2  Ves.  Jr.  191 ;  Strathmore  v.  Bowes,  2  Bro.  Ch. 
345;  2  Cox,  485;  1  Ves.  Jr.  22  ;  Goddard  v.  Snow,  1  Russ.  485;  Tucker 
V.  Andrews,  13  Me.  124;  Waller  v.  Avmistead,  2  Leigh,  11;  Logan  v. 
Simmons,  3  Ired.  Eq.  487;  Terry  v.  Hopkins,  1  Hill,  Eq.  1;  Duncan's 
App.,  43  Pa.  St.  67  ;  Wrigley  v.  Swainson,  3  De  G.  &  Sm.  458 ;  Manes  v. 
Durant,  2  Rich.  Eq.  404 ;  McAfee  v.  Ferguson,  9  Mon.  495 ;  Linker  v. 
Smith,  4  Wash.  224;  Ramsay  v.  Joyce,  1  McMull.  Eq.  237;  Williams 
V.  Carle,  2  Stockt.  Ch.  543  ;  Lewellin  v.  Cobbald,  1  Sm.  &  Gif.  376 ; 
Cheshire  v.  Payne,  16  B.  Mon.  618;  Carleton  v.  Dorset,  2  Vern.  17;  2 
Cox,  63;  McDonnell  v.  Hesilridge,  16  Beav.  346;  Howard  v.  Hooker,  2 
Ch.  R.  81 ;  St.  George  v.  Wake,  1  M.  &  K.  622  ;  Taylor  v.  Pugh,  1  Hare, 
608;  Ashton  v.  McDougall,  5  Beav.  56 ;  Griggs  v.  Staples,  2  De  G.  &  Sm. 
672;  Smith  v.  Smith,  2  Halst.  Ch.  515;  Petty  v.  Petty,  4  B.  Mon.  215; 
Belt  V.  Ferguson,  3  Grant,  289. 

^  Richards  v.  Lewis,  11  C.  B.  1035;  Logan  v.  Simmons,  1  Dev.  &  Bat. 
Law,  13. 

2  De  Manville  v.  Crompton,  1  V.  &  B.  354;  England -r.  Downes,  2 
Beav.  522;  Smith  r.  Smith,  2  Halst.  Ch.  515;  Tucker  v.  Andrews,  13 
Me.  124;  Manes  v.  Durant,  2  Rich.  Eq.  404;  Terry  v.  Hopkins,  1  Hill, 
Eq.  1;  Hunt  v.  Mathews,  1  Vern.  408;  King  v.  Cotton,  2  P.  Wms.  674; 
Mos.  259. 

8  Blanchet  v.  Foster,  2  Ves.  264.  But  if  the  consideration  is  fraudu- 
lently stated  in  the  deed,  it  will  make  the  conveyance  fraudulent.  Lewel- 
lin V.  Cobbald,  1  Sm.  &  Gif.  376. 

4  St.  George  v.  Wake,  1  M.  &  K.  610;  McClure  v.  Miller,  1  Bail.  Eq. 
108;  Knottman  v.  Peyton,  1  Speer's  Eq.  46;  Terry  v.  Hopkins,  1  Hill,  Eq. 
1;  Cheshire  v.  Payne,  16  B.  Mon.  018;  Fletcher  v.  Ashley,  6  Grat.  332; 
Slocombe  v.  Glubb,  2  Bro.  Ch.  545. 

6  St.  George  v.  Wake,  1  M.  &  K.  610;  England  v.  Downes,  2  Beav. 
522. 

6  Blenkinsop  v.  Blenkinsop,  1  De  G.,  M.  &  G.  495;  Krupp  v.  Scholl, 
10  Pa.  St.  193. 

VOL.  1.  — 18  273 


§  -214.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

no  reference  to  that  particular  property,  its  conveyance  is  not 
fraudulent,  unless  it  was  actually  intended  as  a  fraud  upon 
him,i  and  so  there  must  be  an  intent  to  defraud  the  individual 
who  is  afterwards  married  ;  for  if  a  deed  is  made  to  defraud 
another  individual  who  is  not  married,  but  a  marriage  after- 
wards takes  place  with  a  person,  not  in  contemplation  at  the 
time,  there  is  no  fraud.^  If  no  notice  of  the  conveyance  is 
shown  to  have  been  given,  it  will  be  presumed  that  no  notice 
was  had ;  ^  and  it  is  always  a  question  of  fact  upon  the  whole 
transaction  whether  the  conveyance  is  fraudulent.*  If,  how- 
ever, the  property  is  of  that  character  that  the  husband  could 
obtain  no  right  over  it  by  the  marriage,  the  conveyance  of 
it  by  the  wife  before  marriage  cannot  be  set  aside.^  In  all 
antenuptial  contracts  there  must  be  the  utmost  good  faith 
between  the  parties,  and  a  grossly  disproportionate  settlement 
may  be  evidence  of  a  fraudulent  concealment.^ 

§  214.  There  are  certain  purposes  for  which  neither  ex- 
press law  nor  public  policy  will  allow  parties  to  contract ; 
thus,  the  law  will  not  permit  contracts  for  the  procuring  of 
marriages,'^  or  of  public  offices,^  or  of  legislation,^  or  of  illicit 

1  Thomas  v.  Williams,  Mos.  177;  DeManville  v.  Crompton,  1  "V.  &  B. 
354;  St.  George  ».  Wake,  1  M.  &  K.  622;  and  see  Goddard  v.  Snow,  1 
Russ.  485. 

2  Strathraore  v.  Bowes,  1  Ves.  Jr.  22;  2  Bro.  Ch.  345;  2  Cox,  28;  6 
Bro.  P.  C.  427;  1  Lead.  Ca.  Eq.  325;  England  v.  Downes,  2  Beav.  522; 
Cheshire  v.  Payne,  16  B.  Mon.  618;  Wilson  v.  Daniel,  13  B.  Mon.  351. 

3  Cole  V.  O'Neill,  3  Md.  174 ;  Wrigley  v.  Swainson,  3  De  G.  &  Sm.  458. 

4  Ibid. 

^  Ibid.  Whether  the  deed  on  record  is  notice  or  not,  is  a  question. 
Cole  V.  O'Neill,  3  Md.  174. 

«  Kline's  Est.,  64  Pa.  St.  122. 

'  Drury  v.  Hook,  1  Vern.  412;  Cole  v.  Gibson,  1  Ves.  507;  Deben- 
ham  V.  Ox,  Id.  277;  Smith  v.  Aykwell,  3  Atk.  566;  Smith  r.  Bruning,  2 
Vern.  392;  Williamson  v.  Gihon,  2  Sch.  &  L.  357;  Roberts  v  Roberts, 
3  P.  Wms.  76. 

*  Hartwell  v.  Hartwell,  4  Ves.  811;  Morris  v.  McCuUoch,  Amb.  432; 
2  Eden,  190;  Writhingham  v.  Burgoyne,  2  Anst.  900;  Harrington  t-.  Du- 
chattel,  1  Bro.  Ch.  124. 

9  Robinson  v.  Cox,  9  Mod.  263;  Walker  v.  Perkins,  3  Burr.  1568;  1 
Bla.  517;  Rex  v.  Inhabitants  of  Northwingfield,  1  B.  &  Ad.  912;  Wine- 

274 


CHAP.  VI.]  PRETENDING    TO    BUY    FOR    ANOTHER.  [§  215. 

coliabitation.^  If,  therefore,  such  contracts  are  entered  into, 
equity  will  enjoin  their  performance.^  And  the  party  creat- 
ing the  interest,  although  in  pari  delicto,  may  apply  for  an 
injunction.  In  such  cases,  the  person  applying  must  return 
any  benefit  that  he  may  have  received.^  Such  contracts  are 
equally  void  at  law,  and  if  the  parties  are  in  pari  delicto,  the 
law  will  leave  them  where  it  finds  them.  If  one  party  has 
advanced  money  upon  an  immoral  or  illegal  contract,  the 
law  will  give  him  no  aid  to  recover  it  back.  But  equity  will 
sometimes  fasten  a  trust  upon  the  conscience  of  the  party 
who  has  received  money  or  property  under  such  contracts, 
and  compel  him  to  repay  or  reconvey  it,*  especially  if  the 
illegal  purpose  fails.^ 

§  215.  If  at  a  sale  of  an  estate  of  a  debtor  upon  execution, 
any  one  announces,  for  the  purpose  of  preventing  competition, 
that  he  is  bidding  or  purchasing  for  the  debtor  ;  ^  or  if,  upon 
the  sale  of  the  property  of  a  deceased  person,  a  bidder  an- 
nounces that  he  is  purchasing  for  the  benefit  of  children  or 
heirs,  or  if  at  a  mortgagee's  sale  a  person  announces  that  he  is 
purchasing  for  the  mortgagor,  and  thus  prevents  competition, 

brinner  v.  Weiseger,  3  Monr.  35;  Travinger  v.  McBurney,  5  Cow.  253; 
Cusack  V.  White,  3  Const.  Ct.  R.  284;  Fuller  v.  Dame,  18  Pick.  472; 
Pingry  v.  Washburn,  1  Aiken,  264 ;  Grolick  v.  Ward,  5  Halst.  87 ;  Wood 
V.  McCann,  6  Dana,  366 :  Clippinger  v.  Hipbaugh,  3  W.  &  S.  315  ;  Harris 
V.  Roop,  10  Barb.  489 ;  Sedgwick  v.  Stanton,  4  Kern.  289 ;  Frost  v.  Bel- 
mont, 6  Allen,  152. 

1  Marshall  v.  Baltimore  &  Ohio  Railw.,  16  How.  153. 

2  Robinson  v.  Gee,  1  Ves.  251;  Gray  v.  Mathias,  5  Ves.  286;  Franco 
V.  Bolton,  3  Ves.  370. 

8  St.  John  V.  St.  John,  11  Ves.  535;  Reynell  v.  Sprye,  1  De  G.,  M.  &  G. 
660. 

*  Smith  V.  Bruning,  2  Vern.  302;  Morris  v.  McCuUoch,  Amb.  432; 
Ownes  V.  Ownes,  8  C.  E.  Green,  60. 

6  Symes  v.  Hughes,  L.  R.  9  Eq.  475. 

8  Kinard  v.  Hiers,  2  Rich.  Eq.  423;  Lloyd  v.  Currin,  3  Humph.  462; 
Seichrist's  App.,  66  Pa.  St.  237;  ]\Iiller  v.  Antle,  2  Bush,  407;  Brannin  v. 
Brannin,  18  N.  J.  Ch.  282;  Crutcher  v.  Hord,  4  Bush,  360;  Roach  v. 
Hudson,  8  Bush,  410;  Brown  v.  Lynch,  1  Paige,  147;  Tankard  i?.  Tan- 
kard, 84  N.  C.  286. 

275 


§  216.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

the  purchaser  will  be  held  to  be  a  trustee  for  the  benefit  of 
the  parties  interested  in  the  property.^  So  if  any  one  pro- 
fessing to  act  for  another  purchases  for  himself,  he  will  be 
held  as  a  trustee.^  But  in  such  cases  there  must  be  some 
proof  of  fraud  and  deceit  practised  by  the  purchaser ;  the 
mere  breach  of  a  parol  agreement  will  not  create  a  construc- 
tive trust  in  such  cases  ;^  and  if  the  conduct  of  the  pur- 
chaser is  not  fraudulent  and  produces  no  injury,  a  trust  is  not 
raised.*  If  the  parties  for  whom  the  purchaser  pretends  to 
buy  have  no  interest  in  the  property,  they  cannot  establish  a 
trust.^ 


§  216.  Again,  if  a  testator  make  a  devise,  or  a  grantor  a 
conveyance,  upon  a  secret  trust  in  fraud  of  the  law,  or  for  a 
purpose  forbidden  by  law,  or  contrary  to  public  policy,  those 
interested  may  bring  a  bill  alleging  the  secret  trust,  and  the 
fraud  upon  the  law,  and  the  persons  to  whom  the  devise  or 
conveyance  was  made  must  answer,*  notwithstanding  the 
statute  of  frauds.^     If  such  fraudulent  trust  appear  by  the 

^  Brown  v.  Dysinger,  1  Rawle,  408;  Kellum  v.  Smith,  9  Casey,  158; 
Sheriff  v.  Neal,  6  Watts,  534;  Sharp  v.  Long,  4  Casey,  443;  Morey  w. 
Herrick,  6  Harris,  123;  AVUliard  v.  Williard,  6  P.  F.  Smith,  119;  Robert- 
son V.  Robertson,  9  Watts,  32;  Piumer  v.  Reed,  2  Wright,  46;  Beegle  v. 
Wentz,  73  Pa.  St.  369;  Kisler  v.  Kisler,  2  Watts,  323;  McCaskey  v. 
Graff,  11  Harris,  321 ;  Abbey  v.  Dewey,  1  Casey,  114;  McRarey  v.  Huff, 
32  Ga.  681 :  Ryan  v.  Dox,  34  N.  Y.  307;  Mackay  v.  Martin,  26  Tex.  225; 
Dennis  v.  McCagg,  32  111.  429;  Cook  v.  Cook,  69  Pa.  St.  443;  Jenckes  v. 
Cook,  9  R.  I.  520.  So,  as  to  a  party  holding  bona  Jide  a  claim  upon 
the  property,  whether  valid  or  not.  -  Wolford  v.  Hemington,  86  Pa. 
St.  39. 

2  Rothwell  V.  Dawes,  2  Black  (U.  S.),  613;  O'Neil  v.  Hamilton,  44  Pa. 
St.  18;  Coe  v.  Bradley,  49  Me.  388;  Baylis  v.  Baxter,  22  Col.  175;  Adams 
V.  Bradley,  12  .Mich.  346 ;  Drennen  v.  Walker,  21  Ark.  539. 

3  iMinott  V.  jMitchell,  30  Ind.  288. 

*  Taylor  v.  Boardman,  24  ]\Iich.  287. 

s  Rogers  v.  Simmons,  58  111.  76 ;  Walter  v.  Klock,  55  HI.  82. 

®  Muckleston  v.  Brown,  6  Ves.  52;  Podmore  v.  Gunning,  7  Sim.  644; 
Chamberlain  v.  Agar,  2  V.  &  B.  259;  Strickland  v.  Aldridge,  9  Ves.  513; 
Edwards  v.  Pike,  1  Eden,  267;  Walgrave  v.  Tebbs,  2  K.  &  J.  313  ;  Robin- 
son V.  King,  6  Ga.  550. 

276 


CHAP.  VI.]  PURCHASES    FROM    TRUSTEES.  [§  217. 

answer,!  or  by  any  clear  and  explicit  proof  in  opposition  to 
the  answer ,2  a  trust  will  be  declared  and  enforced  in  favor  of 
those  interested  in  the  estate,  or  in  the  event  of  the  failure 
of  the  illegal  trust.  In  all  cases  of  actual  fraud  parol  evi- 
dence is  admissible,  otherwise  a  fraud  put  in  writing  would 
always  escape.^ 

§  217.  Another  large  class  of  constructive  trusts  arises 
from  purchases  or  conveyances  from  trustees,  or  other  per- 
sons holding  a  fiduciary  relation  to  property.  It  is  a  univer- 
sal rule,  that  if  a  man  purchases  property  of  a  trustee,  with 
notice  of  the  trust,  he  shall  be  charged  with  the  same  trust, 
in  respect  to  the  property,  as  the  trustee  from  whom  he  pur- 
chased.*   And  even  if  he  pays  a  valuable  consideration,  with 

1  Cottingham  v.  Fletcher,  2  Atk.  155;  Bozon  v.  Statham,  1  Eden,  508; 
Bishop  V.  Talbot,  cited  6  Ves.  60 ;  Adlington  v.  Cann,  3  Atk.  141 ;  Paine 
V.  Hall,  18  Ves.  473;  1  Eden,  515,  n.  (a). 

2  How  V.  Camp,  Walk.  Ch.  427;  Strickland?;.  Aldridge,  9  Ves.  520; 
Pring  V.  Pring,  2  Vern.  99. 

8  Ibid. 

*  Le  Neve  v.  Le  Neve,  Arab.  436 ;  3  Atk.  646;  1  Ves.  64;  2  Lead.  Ca. 
Eq.  23  and  notes ;  Merry  v.  Abney,  1  Ch.  Ca.  38 ;  Potter  v.  Sanders,  6 
Hare,  1 ;  Kennedy  v.  Daly,  1  Sch.  &  L.  355  ;  Crofton  v.  Ormsby,  2  Sch.  & 
L.  583  ;  Ferras  v.  Cherry,  2  Vern.  384  ;  Daniels  v.  Davidson,  16  Ves.  249 ; 
Brooke  v.  Bulkeley,  2  Ves.  498 ;  Jennings  v.  Moore,  2  Vern.  609 ;  2  Bro. 
P.  C.  278;  Birch  v.  Ellames,  2  Anst.  427  ;  Mackreth  v.  Symmons,  19  Ves. 
349;  Grant  v.  Mills,  2  V.  &  B.  306;  Saunders  v.  Dehew,  2  Vern.  271; 
Mansell  v.  Mansell,  2  P.  Wms.  681  ;  Wigg  v.  Wigg,  1  Atk.  382 ;  Dunbar 
V.  Tredennick,  2  B.  &  B.  319  ;  Pawlettw.  Att'y-Gen.  Hardr.  465;  Burgess 
V.  Wheate,  1  Eden,  195  ;  Adair  v.  Shaw,  1  Sch.  &  L.  262:  Mead  v.  Orrery,  3 
Atk.  238;  Bovey  v.  Smith,  1  Vern.  149;  Phayre  v.  Peree,  3  Dow,  129; 
Wormley  v.  Wormley,  8  Wheat.  421 ;  Oliver  v.  Piatt,  3  How.  333;  Cald- 
well V.  Carrington,  9  Peters,  86  ;  Wright  v.  Dame,  22  Pick.  55;  Clarke  v. 
Hackerthorn,  3  Yeates,  269;  Peebles  v.  Reading,  8  S.  &  R.  495;  Reed  v. 
Dickey,  2  Watts,  459 ;  Hood  v.  Fahnestock,  1  Barr,  470 ;  Wilkins  v.  Ander- 
son, 1  Jones,  399  ;  Denn  v.  McKnight,  6  Halst.  385;  Murray  v.  Ballou,  1 
Johns.  Ch.  566 ;  Bailey  v.  Wilson,  1  Dev.  &Bat.  182 ;  Massey  v.  Mcllwaine, 
2  Hill,  Eq.  426  ;  Benzien  v.  Lenoir,  1  Car.  L.  R.  504  ;  Pugh  v.  Bell,  1  J.  J. 
Marsh.  403;  Liggett  v.  Wall,  2  A.  K.  Marsh.  149;  Truesdell  v.  Calloway, 
6  Miss.  605;  Suydam  v.  Martin,  Wright,  384;  Winged  v.  Lefebury,  1  Eq. 
Ca.  Abr.  32;  Taylor  v.  Stibbert,  2  Ves.  Jr.  437 ;  Case  v.  James,  29  Beav. 
512  ;  Cary  v.  Eyre,  1  De  G.,  J.  &  S.  149;  Jones  v.  Shaddock,  41  Ala.  362  ; 

277 


§  217.]  CONSTRUCTIVE  TRUSTS.  [CHAP.  VI. 

notice  of  the  equitable  rights  of  a  third  person,  he  shall  hold 
the  property  subject  to  the  equitable  interests  of  such  person.^ 
Of  course,  a  mere  volunteer^  or  person  who  takes  the  prop- 
erty without  paying  a  valuable  consideration,  will  hold  it 
charged  with  all  the  trusts  to  which  it  is  subject,  ivhether  he 
have  notice  or  not ;  for  in  such  case  no  wrong  or  pecuniary 
loss  can  fall  upon  him,  in  compelling  him  to  execute  the 
trust  to  which  the  property  that  came  to  him  without  consid- 
eration was  subject.  Such  purchases  from  trustees,  whether 
for  value  or  not,  are  fraudulent,  and  equity  will  follow  the 
property  and  fasten  the  original  trust  upon  it  for  the  security 
of  the  cestui  que  trust,  or  other  person  holding  an  equitable 
interest.^  The  rule  applies  not  only  to  express  trusts,  or 
those  expressly  declared  by  written  instruments,  but  it  ap- 
plies to  constructive  trusts,  or  those  trusts  that  arise  from 
fraud.  Thus,  if  a  party  procures  a  conveyance  of  property 
from  another  by  fraud,  he  shall  be  held  to  be  a  constructive 
trustee ;  and  if  he  sells  such  property  to  a  third  person  who 
has  full  knowledge  or  notice  of  the  fraud,  such  third  person 
will  be  equally  held  as  a  trustee.^  After  a  purchase  is  once 
made  from  a  trustee  with  notice  of  the  trust,  the  person 
taking  the  title  cannot  bar  the  interest  of  the  cestui  que  trust 
by  buying  in  other  interests,  or  by  levying  a  fine  or  suffering 
a  recovery,  obtaining  a  judgment,  or  by  procuring  the  assign- 
ment to  himself  of  outstanding  mortgages  or  terms.*  Having 
once  taken  with  notice  of  the  trust,  he  is  a  trustee  in  law, 
and  a  trustee  cannot  defeat  the  interests  of  his  cestui  que 
trust;  on  the  contrary,  all  the  interest  that  the  trustee,  or 
constructive  trustee,  shall  thus  buy  in,  will  inure  to  the  bene- 
fit of  the  title  for  the  cestui  que  trust.^ 

Ryan  v.  Doyle,  31  Iowa,  53  ;  Smith  v.  Walter,  49  Mo.  250  ;  James  v.  Cow- 
ing, 17  Hun  (N.  Y.),  256. 

1  Ibid. 

2  Ibid. ;  Lyford  v.  Thurston,  16  N.  H.  399. 

3  Pye  V.  George,  1  P.  Wms.  128  ;  Saunders  v.  Dehew,  2  Vern.  271 ; 
Mansell  v.  Mansell,  2  P.  Wms.  681 ;  Smith  v.  Bowen,  35  N.  Y.  83  ;  Lyons 
V.  Bodenhamer,  7  Kans.  455;  Sadler's  Appeal,  87  Pa.  St.  154. 

*  Moloney  v.  Kernan,  2  Dr.  &  W.  31  ;  Brook  v.  Bulkeley,  2  Yes.  498. 
5  Bovev  V.  Smith,  1  Vern.  145;  Kennedy  v.  Daly,  1  Sch.  &  L.  37. 

278 


CHAP.  VI.]  PURCHASES   FROM   TRUSTEES.  [§  218. 

§  218.  Of  course,  the  opposite  proposition  is  also  true,  that 
a  purchaser  for  a  valuable  consideration  without  actual  or 
constructive  notice  of  the  trust,  holds  the  property  discharged 
of  the  interest  of  the  cestui  que  trust.  It  is  thus  stated  on 
great  authority :  "  A  purcliaser,  bona  fide  without  notice  of 
any  defect  in  his  title'  at  the  time  he  made  the  purchase, 
may  buy  in  a  statute  or  mortgage,  or  any  other  incumbrance, 
and  if  he  can  defend  himself  at  law  by  any  such  incumbrance 
bought  in,  his  adversary  shall  never  be  aided  in  a  court  of 
equity  for  setting  aside  such  incumbrance,  for  equity  will  not 
disarm  a  purchaser,  but  assist  him  ;  and  precedents  of  this 
nature  are  very  ancient  and  numerous;  viz.,  where  the  court 
hath  refused  to  give  any  assistance  against  a  purchaser, 
either  to  an  heir,  or  to  a  widow,  or  to  the  fatherless,  or  to 
creditors,  or  even  to  one  purchaser  against  another."  And  it 
may  be  added  that  nothing  is  clearer  than  that  a  purchaser 
for  valuable  consideration  without  notice  of  a  prior  equitable 
right,  obtaining  the  legal  estate  at  the  time  of  his  purchase, 
is  entitled  to  priority  in  equity  as  well  as  at  law,  according 
to  the  well-known  maxim  that  where  equities  are  equal  the 
law  shall  prevail?-     But  while  a  purchaser  for  value  without 

^  Bassett  v.  Nosworthy,  Ca.  t.  Finch,  102;  2  Lead.  Ca.  Eq.  1  &  notes 
Jerrard  v.  Saunders,  2  Ves.  Jr.  457;  Goleborn  v.  Alcock,  2  Sim.  552 
Sanders  v.  Deligne,  Freem.  123;  Fagg's  Case,  1  Vern.  52;  1  Ch.  Ca.  68 
Harcourt  i'.  Knowel,  2  Vern.  159;  Siddon  v.  Charnells,  Bunb.  298;  Jones 
V.  Powles,  3  M.  &  K.  581;  AVilloughby  v.  Willoaghby,  1  T.  R.  763;  Blake 
V.  Hungerford,  Pr.  Ch.  158;  Charlton  v.  Low,  3  P.  Wins.  328;  Ex  parte 
Knott,  15  Ves.  609 ;  Shine  v.  Gough,  1  B.  &  B.  436;  Bowen  ;;.  Evans,  1  Jon. 
&  La.  264;  Boone  v.  Chiles,  10  Pet.  177;  Watson  v.  Le  Roy,  6  Barb.  485; 
Walwyn  ».  Lee,  9  Ves.  24;  Varick  v.  Briggs,  6  Paige,  325;  Demarest  v. 
Wynkoop,  3  Johns.  Ch.  147;  Dan  v.  McKnight,  6  Halst.  385;  Howell  ». 
Ashmore,  1  Stockt.  82;  Heilner  v.  Imbrie,  6  S.  &  R.  401 ;  Mundine  y. 
Pitts,  U  Ala.  84;  Tomkins  v.  Powell,  6  Leigh,  576;  Woodruff  v.  Cook,  1 
Gill  &  J.  270;  Whittick  v.  Kane,  Id.  202;  High  v.  Batte,  10  Yerg.  335; 
Jones  V.  ZoUicoffer,  2  Taylor,  214  ;  Owings  v.  Mason,  2  A.  K.  Marsh.  384; 
Halstead  v.  Bank  of  Kentucky,  4  J.  J.  IMarsh.  554;  Blight  v.  Banks,  6  Mon. 
198  ;  Hughson  v.  Mandeville,  4  Des.  87 ;  Goodtitle  v.  Cummings,  8  Blackf. 
179;  Maywood  v.  Lubcock,  1  Bail.  Eq.  382;  Brown  v.  Budd,  2  Cart.  442; 
Fletcher  t'.  Peck,  0  Cranch,  36;  Alexander  v.  Pendloton,  8  Cranch,  462; 
Vattier  v.  Hinds,  7  Pet.  252  ;  Dana  v.  Newhall,  13  Mass.  498;  Connecticut 

279 


§  219.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

notice  may  lay  hold  upon  any  plank  to  save  himself,  he  can- 
not, after  notice  of  the  trust,  take  any  conveyances  from  the 
trustee  of  outstanding  legal  interests ;  for  that  is  a  breach  of 
the  trust,  and  he  cannot  commit  a  breach  of  the  trust  to  pro- 
tect himself.^  But  a  purchase  of  an  equitable  interest  only, 
although  for  a  valuable  consideration  and  without  notice, 
cannot  prevail  against  a  legal  title.  In  law  the  legal  title 
must  always  prevail,  and  in  equity  the  legal  title  will  prevail 
if  the  equities  are  equal.^ 

§  219.  This  protection  of  a  bona  fide  purchaser  for  value 
without  notice  is  clear  and  certain,  but  it  is  hedged  about 
with  great  care.  It  is  said  to  he  a  shield  to  protect,  and  not  a 
sword  to  attack.  It  is  surrounded  with  restrictions,  so  that  it 
may  not  become  a  cloak  for  fraud.  The  defendant  in  a  suit 
in  equity  must  clearly  and  unequivocally  swear  in  his  answer 
that  he  is  a  purchaser  for  value  without  notice,^  and  he  must 

V.  Bradish,  14  Mass.  296;  Tmll  v.  Bigelow,  16  Mass.  406;  Boynton  v.  Rees, 
8  Pick.  29;  Gallatian  v.  Erwin,  Hopk.  48;  8  Cow.  36;  Bumpus  v.  Platner. 
1  Johns.  Ch.  213;  Griffith  v.  Griffith,  9  Paige,  315;  Mott  v.  Clark,  9  Barr, 
399;  Brackett  v.  Miller,  4  W.  &  S.  102;  Filby  v.  Miller,  1  Casey,  264; 
Rutgers  v.  Kingsland,  3  Halst.  Ch.  178,658;  Holmes  r.  Stout,  3  Green, 
Ch.  492;  City  Council  v.  Paige.  Spear,  Ch.  159;  Lacy  v.  Wilson,  4  ]Munf. 
413;  Curtis  v.  Lanier,  6  Munf.  42;  Dixon  v.  Caldwell,  15  Ohio  St.  412; 
»Dillaye  v.  Commercial  Bank,  51  N.  Y.  345;  Carter  v.  Carter,  3  K.  &  J. 
6.39;  Sugd.  V.  &  P.  740;  Colesbury  v.  Dart,  58  Ala.  573;  Hamilton  i'. 
Mound  City  Mut.  Life  Ins.  Co.,  3  Tenn.  Ch.  124. 

1  Saunders  v.  Dehew,  2  Vern.  271;  Freem.  123;  Allen  v.  Knight.  5 
Hare,  272;  Terrett  v.  Crombie,  6  Lansing,  82. 

^  Snelgrove  v  Snelgrove,  4  Des.  274  ;  Daniel  v.  Hollingshead,  16  Ga. 
196;  Larrow  v.  Beam,  10  Ohio,  148;  Jones  v.  Zollicoffer,  2  Taylor,  214; 
Brown  v.  Wood,  6  Rich.  Eq.  155;  Blake  v.  Heyward,  1  Bail.  Eq.  208; 
Shirras  v.  Caig,  7  Cranch,  48 ;  Jones  v.  Jones,  8  Sim.  633 ;  Pensonneau  v. 
Bleakley,  14  111.  15;  Boone  v.  Chiles,  10  Pet.  177;  Kramer  v.  Arthurs, 
7  Barr,  165;  Wailes  v.  Cooper,  24  Miss.  208;  Sergeant  v.  Ingersoll,  7 
Barr,  340;  3  Harris,  343;  Flagg  v.  IMann,  2  Sumn.  486,  556;  Cottrell  v. 
Hughes,  15  C.  B.  532;  Vattier  v.  Hinde,  7  Pet.  252;  Parsons  v.  Jury, 
1  Yerg.  296;  Gallion  r.  McCaslin,  1  Blackf.  91;  Maries  v.  Cooper,  22 
Miss.  208. 

8  Sugd.  V.  &  P.  507;  Marshall  v.  Frank,  8  Pr.  Ch.  480,  1  Anst.  14; 
Blacket  v.  Langlands,  Sel.  Ca.  Ch.  51 ;  Gilb.  58. 
280 


CHAP.  VI.]  NOTICE.  [§  219. 

set  forth  all  the  particulars  of  the  purchase,  and  the  title  or 
pretended  title  of  the  person  from  whom  he  purchased.^  He 
must  show  an  actual  conveyance  and  not  merely  an  agree- 
ment for  a  conveyance ;  ^  and  it  must  be  shown  that  the  con- 
sideration money  named  in  the  deed  was  paid  in  good  faith. 
It  is  not  enough  that  the  consideration  was  secured  to  be 
paid ;  nor  is  a  recital  of  payment  in  the  deed  sufficient :  there 
must  be  an  actual  payment.^  Then  he  must  also  malce  an 
explicit  denial  of  notice  of  the  title  which  is  attempted  to 
be  set  up.  A  denial  of  knowledge  of  the  particular  person 
who  might  assert  such  title  is  not  sufficient ;  *  notice  must  be 
positively  and  affirmatively  denied,  and  not  evasively  or  infer- 
entially.^  If  particular  instances  or  circumstances  of  notice 
or  of  fraud  are  alleged,  there  must  be  clear,  special,  and  par- 
ticular denials  of  each  and  every  circumstance.^  These  strin- 
gent rules  are  necessary  for  the  protection  of  the  equitable 
interests  of  one  person,  where  the  legal  title  is  in  the  hands 
of  another.'^ 

1  Walwyn  v.  Lee,  9  Ves.  Jr.  26;  Story  v.  Winsor,  3  P.  Wms.  279; 
Head  v.  Egerton,  1  Vern.  246;  Trevanion  v.  Morse,  3  Ves.  32,  226  ;  Arab. 
421;  Jackson  v.  Rowe,  4  Russ.  514;  Lanesborough  v.  Kilmaine,  2  Moll. 
403  ;  Hughes  v.  Garth,  Amb.  421 ;  Page  v.  Lever,  2  Ves.-  Jr.  450  ;  Dobson 
V.  Leadbeater,  13  Ves.  230. 

2  Head  v.  Egerton,  1  P.  Wms.  281  ;  Brandlyn  v.  Ord,  1  Atk.  571. 

8  Millard's  Case,  Freem.  43 ;  WagstafE  v.  Read,  2  Ch.  Ca.  156  ;  More  v. 
Mayhow,  1  Ch.  Ca.  34;  2  Freem.  175;  Day  v.  Arundel,  Hard.  510;  Hard- 
ingham  p.  Nichols,  3  Atk.  304 ;  Moloney  v.  Kernan,  2  Dr.  &  War.  31 ;  Mait- 
land  V.  Wilson,  3  Atk.  814.     But  see  Parker  v.  Crittenden,  37  Conn,  148. 

*  Kelsal  V.  Bennett,  1  Atk.  522  ;  Brompton  v.  Barker,  cited  2  Vern.  159, 
is  not  law. 

8  3  P.  Wms.  244,  n.  (f)  ;  Bran  v.  Marlborough,  2  P.  Wms.  492  (6  Res.) ; 
Hughes  V.  Garner,  2  Y.  &  Col.  Exch.  Ca.  328. 

6  Pennington  v.  Beechey,  2  S.  &  S.  282;  Anon.  2  Ch.  Ca.  161 ;  Price 
V.  Price,  1  Vern.  185;  Hardman  v.  Ellames,  5  Sim.  650;  2  M.  &  K.  732. 

''  Alexander  v.  Pendleton,  8  Cranch,  462;  Hunter  v.  Simrall,  5  Litt. 
62  ;  Boone  v.  Chiles,  10  Pet.  177;  Bush  v.  Bush,  3  Strob.  Eq.  131;  Blight 
V.  Bank,  6  Mon.  698;  Halstead  v.  Bank  of  Kentucky,  4  J.  J.  Marsh.  554; 
Moore  v.  Clay,  7  Ala.  142;  Pillow  v.  Shannon,  3  Yerg.  308;  Nantz  v. 
McPherson,  7  Munf .  599  ;  Dillard  v.  Crocker,  1  Spear,  Eq.  20 ;  Vattier  v. 
Ilinde,  7  Pet.  252;  Jackson  v.  Rowe,  2  S.  &  S.  472;  Jones  v.  Powles,  3 
M.  &  K.  581. 

281 


§  221.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

§  220.  These  leading  propositions  are  simple  and  plain 
enough,  but  difticulties  frequently  arise  as  to  what  is  a  valu- 
able consideration,  and  whether  a  purchaser  had  notice  of 
the  equitable  estate,  and  when  and  how  he  obtained  it.  It 
is  well  established  that  a  conveyance,  to  be  good  against  the 
equitable  interest  of  a  cestui  que  trust,  must  be  for  a  valuable 
consideration,  and  that  a  conveyance  for  a  good  consideration, 
as  for  love  and  affection,  is  not  sufficient.^  But  if  the  con- 
sideration is  valuable,  it  need  not  be  adequate :  mere  inade- 
quacy of  consideration  will  not  defeat  a  purchase  for  a 
valuable  consideration  without  notice  ;  but  gross  inadequacy 
of  a  valuable  consideration  would  be  evidence  affecting  the 
good  faith  of  the  transaction.''^  Marriage  is  a  valuable  con- 
sideration, for  a  conveyance  ;  but  if  a  conveyance  after  mar- 
riage is  made  in  pursuance  of  an  agreement  before  marriage, 
it  must  be  made  clearly  to  appear.^  The  general  definition 
of  a  valuable  consideration  embraces  not  only  some  valuable 
thing  or  property  given  or  transferred  to  another,  but  also 
some  loss  of  property  or  right,  or  the  forbearing  of  some  legal 
right  or  remedy.* 

§  221.  In  order  that  one  may  claim  protection  as  a  bona 
fide  purchaser,  the  money  must  have  been  actually  paid  and 
the  conveyance  taken  before  notice  is  received  of  the  trust. 
If  the  money  is  secured,  but  not  paid,  notice  of  the  trust  will 
convert  the  purchaser  into  a  trustee,^  and  so  if  the  money  is 

1  Upshaw  V.  Hargrove,  6  Sm.  &  M.  292;  Frost  v.  Beekman,  1  Jolins. 
Ch.  288;  Patten  v.  IMoore,  32  N.  H.  382  ;  Boone  v.  Baines,  23  Miss.  136  ; 
Everts  v.  Agnes,  4  Wis.  343;  Swan  v.  Ligan,  1  McCord,  Ch.  232. 

2  More  V.  Mayhow,  1  Ch.  Ca.  34;  Wagstaff  v.  Read,  2  Ch.  Ca.  156  ; 
Bullock  V.  Sadlier,  Amb.  764;  Mildmay  v.  Mildmay,  cited  Amb.  767. 

3  Harding  v.  Hardrett,  t.  Finch,  9;  Lord  Keeper  r.  VVyld,  1  Vern.  139. 
*  It  is  impossible  to  pursue  this  subject  in  all  its  details  and  distinctions 

in  a  work  of  this  character  without  exceeding  all  reasonable  limits.  The 
cases  will  be  found  most  industriously  collected  in  the  notes  to  Bassett  v. 
Nosworthy,  2  Lead.  Ca  Eq.  103-109,  and  the  distinctions  and  qualifica- 
tions are  fully  discussed. 

6  Tourville  v.  Naish,  3  P.  Wms.  387;  Story  v.  Winsor,  2  Atk.  630; 
More  V.  Mayhew,  1  Ch.  Ca.  34;  Jones  v.  Stanley,  2  Eq.  Ca.  Ab.  685; 
High  V.  Batte,  10  Yerg.  555;  Christie  v.  Bishop,  1  Barb.  Ch.  105;  Murray 

282 


CHAP.  VI.]  NOTICE.  [§  221. 

paid,  but  the  conveyance  is  not  executed,  the  weight  of  au- 
thority is  that  notice  of  the  trust  will  destroy  the  protection 
of  the  purchaser.!  It  is  held  that  the  money  must  be  wholly 
paid  before  notice.^  This  rule  proceeds  upon  the  ground, 
that,  as  the  purchaser  is  taking  the  transfer  of  a  title  that 
defeats  the  equitable  right  of  a  third  person,  he  shall  be  held 
to  take  such  title  subject  to  all  the  equities  that  attach  to  it 
at  the  time  it  passes.  If,  therefore,  he  pays  no  money  at  the 
time  the  title  passes,  he  has  no  equity  to  set  up  against  the 
equity  of  a  third  person,  and  if  he  has  notice  before  he  pays 
the  money,  he  pays  in  his  own  wrong.  And  so,  if  he  has  paid 
his  money,  but  has  not  yet  taken  the  title  when  he  receives 
notice,  he  takes  the  title  subject  to  all  the  equities  that  attach 
to  it  when  the  conveyance  is  actually  made  to  him,  as  he 
then  has  a  right  to  refuse  the  conveyance  and  to  demand 
back  Ids  money.^  In  Pennsylvania,  however,  it  is  established 
that  part-payment  of  the  purchase-money  before  notice  will 
give  the  purchaser  an  equity  jpro  tanto.^  So,  if  a  purchaser 
without  notice  make  improvements  on  the  land,  not  having 
paid  the  purchase-money  in  full,  he  will  have  an  equitable 
lien  on  the  land  for  the  amount  of  his  expenditures,  although 

V.  Ballou,  1  Johns.  Ch.  566;  Jackson  v.  Cad  well,  1  Cow.  622;  Jewett  v. 
Palmer,  7  Cow.  65,  265;  Heatley  v.  Finster,  2  Johns.  Ch.  19;  Harris  v. 
Norton,  16  Barb.  204 ;  Patten  v.  Moore,  32  N.  H.  382 ;  McBee  v.  Loftes, 
1  Strob.  Eq.  90;  Hunter  v.  Simrall,  5  Litt.  62;  Palmer  v.  Williams,  24 
Mich.  333 ;  Blanchard  v.  Tyler,  12  Mich.  339;  Stone  v.  Welling,  14  Mich. 
514;  Dixon  v.  Hill,  5  Mich.  404;  Warner  v.  Whittaker,  6  Mich.  133; 
Thomas  v.  Stone,  Walk.  Ch.  117;  Lewis  v.  Phillips,  17  Ind.  108;  Rhodes 
V.  Green,  36  Ind.  10;  Dugan  v.  Vattier,  3  Blackf.  245;  Perkinson  v. 
Hanna,  7  Blackf.  400.  But  see  Parker  v.  Crittenden,  37  Conn.  148;  2 
Dart,  V  &  P.  760. 

1  Wigg  V.  Wigg,  1  Atk.  384 ;  2  Sugd.  V.  &  P.  274. 

2  Wormley  v.  Wormley,  8  Wheat.  421 ;  Wood  v.  Mann,  1  Sumn.  506. 

8  Warner  ('.  Winslow,  1  Sandf.  Ch.  430;  Vattier  v.  Hinde,  7  Pet.  252; 
Bush  V.  Bush,  3  Strob.  Eq.  131;  Kyle  v.  Tait,  6  Grat.  44;  Doswell  e. 
Buchanan,  3  Leigh,  362;  Dillard  v.  Crocker,  1  Spear,  Eq.  20;  Duncan  v. 
Johnson,  2  Eng.  190;  Cook  v.  Bronaugh,  8  Eng.  190;  Frost  v.  Beekman, 
1  Johns.  Ch.  288;  Cole  v   Scott,  2  Wash.  141;  Abell  v.  Howe,  43  Vt.  403. 

*  Youst  V.  Martin,  3  Serg.  &  R.  423;  Lewis  v.  Bradford,  10  Watts,  67; 
Bellas  V.  McCarthy,  10  Watts,  13  ;  Juvenal  v.  Jackson,  2  Harris,  519; 
Uhrich  v.  Beck,  1  Harris,  631;  4  Harris,  499;  Paulw.  Fulton,  25  Mo.  156. 

283 


§  222.]  CONSTRUCTIVE    TRUSTS.  [CHAP.  VI. 

he  lias  no  defence  to  a  bill  to  enforce  the  rights  of  the  cestui 
que  trust.^  This  is  in  analogy  to  the  statutes  that  give  a  de- 
fendant in  a  real  action  a  claim  for  improvements  upon  an  es- 
tate, which  he  has  made  in  ignorance  of  the  title  against  him. 

§  222.  The  notice  of  the  trust  may  be  either  to  the  pur- 
chaser himself,  or  to  his  agent,  counsel,  or  attorney.  The 
general  rule  is  that  notice  to  an  agent  is  notice  to  his  princi- 
pal.2  The  notice,  if  to  an  agent,  must  be  to  an  agent  for  the 
purpose  of  the  purchase,  and  the  notice  must  be  to  him  while 
engaged  in  the  transaction,^  for  the  reason  that  notice  to 
agents  generally,  without  reference  to  the  particular  business 
in  hand,  is  not  binding  upon  the  principal.*  Notice  to  a  hus- 
band is  not  notice  to  a  wife,  unless  he  is  her  agent,  and  is 
engaged  upon  the  business  when  he  receives  the  notice.^ 
Upon  the  same  principle,  knowledge  by  an  executor  before 

1  Boggs  V.  Varaer,  6  Watts  &  S.  469  ;  Farmers'  Loan  Co.  v.  Maltby, 
8  Paige,  563;  Frost  v.  Beekman,  1  Johns.  Ch.  288;  Doswell  v.  Buchanan, 
3  Leigh,  361;  Flagg  v.  Mann,  2  Sumn.  486;  Everts  i'.  Agnes,  4  Wis.  343. 

2  Hovey  v.  Blanchard,  13  N.  H.  145;  Aster  v.  Wells,  4  Wheat.  466; 
Bank  of  U.  S.  v.  Davis,  2  Hill,  451;  Griffith  v.  Griffith,  9  Paige,  315, 
Jackson  v.  Winslow,  9  Cow.  13;  Jackson  v.  Sharp,  9  Johns.  163;  Jackson 
V.  Leek,  19  Wend.  339;  Westerwelt  v.  Hoff,  2  Sandf.  98;  Barnes  v. 
McChristie,  3  Pa.  67;  Blair  v.  Owles,  1  Munf.  38;  Brotherton  v.  Hutt,  2 
Vern.  574;  Newstead  v.  Searles,  1  Atk.  265;  Le  Neve  v.  Le  Neve,  3  Atk. 
646;  1  Ves.  64;  2  Lead.  Ca.  Eq.  165,  notes;  Tunstall  v.  Trappes,  3  Sim. 
301 ;  INIaddox  v.  IMaddox,  1  Ves.  61;  Ashley  i\  Bailley.  2  Ves.  368;  Bracken 
V.  Miller,  4  Watts  &  8.  108;  Espin  v.  Pemberton,  3  De  G.  &  J.  547. 

3  Howard  Ins.  Co.  v.  Halsey.  4  Seld.  271;  Bracken  v.  Miller,  4  Watts 
&  S.  102;  Bank  of  U.  S.  v.  Davis,  2  Hill,  451;  Hood  v.  Fahnestock,  8 
Watts,  489;  Winchester  v.  Baltimore  R.  R.  Co.,  4  Md.  231;  Preston  v. 
Tubbin,  1  Vern.  286;  Mountford  v.  Scott,  3  Madd.  34 ;  Warwick  v.  War- 
wick, 3  Atk.  291;  Ashley  v.  Bailley,  2  Ves.  368;  Worsley  v.  Scarborough, 
3  Atk.  392  ;  Tylee  v.  Webb,  6  Beav.  552;  14  Beav.  14  ;  Finch  v.  Shaw,  19 
Beav.  500;  5  H.  L.  Ca.  905;  Fuller  v.  Bennett,  2  Hare,  394.  But  see 
Abell  V.  Howe,  43  Vt.  403. 

*  Ibid.  ;  U.  S.  Lisurance  Co.  v.  Schriver,  3  Md.  Ch.  381;  Fulton  Bank 
V.  New  York  Coal  Co.,  4  Paige,  127  ;  Bank  v.  Payne,  25  Conn.  444;  North 
River  Bank  v.  Aymar,  3  Hill,  362;  Henry  v.  Morgan,  2  Benn.  497;  Ross 
».  Horton,  2  Cusbman,  501. 

5  Snvder  v.  Sponable,  1  Hill,  567 ;  7  Hill,  427. 

^284 


CHAP.  VI.]  NOTICE.  [§  223. 

the  death  of  his  testator  is  not  notice  to  him  after  his  appoint- 
ment as  executor.  1  It  has  been  held  in  some  cases,  that  the 
notice  to  the  principal,  to  convert  him  into  a  trustee,  must 
be  given  to  him  during  the  progress  of  the  transaction,  as  he 
might  have  known  the  facts  long  before  and  forgotten  them.^ 
If  the  first  purchaser  from  the  trustee  take  the  property, 
bona  fide  for  value  and  without  notice,  all  purchasers  from 
him  will  take  the  property  discharged  of  the  equitable  claims, 
although  they  have  notice  of  them  at  the  time  they  purchase 
of  the  first  purchaser,  and  such  notice  to  them  cannot  convert 
them  into  trustees.^  But  if  the  property  comes  back  into  the 
hands  of  the  original  trustee,  or  into  the  hands  of  any  one 
affected  with  the  guilt  of  the  original  sale,  he  will  be  a  trus- 
tee for  the  defrauded  party,  although  the  property  may  have 
passed  through  several  innocent  hands.* 

§  223.  Notice  to  the  purchaser  may  be  either  actual  or  con- 
structive. Actual  notice  is  a  knowledge  of  the  facts  of  the 
trust  brought  home  to  the  purchaser,  or  a  knowledge  of  such 
facts  as  should  lead  him  to  a  knowledge  of  the  actual  facts  of 
the  case.^  Constructive  notice  is  a  legal  presumption  of  notice 
unless  controlled,  and  in  most  cases  it  is  not  susceptible  of 
rebuttal,  even  by  evidence  that  in  fact  there  was  no  actual 
knowledge.^    Thus,  by  statutes  of  the  several  States  the  re- 

1  Gold  V.  Death,  Cro.  Jac.  381  ;  Hob.  92. 

2  Hamilton  v.  Royse,  2  Sell.  &  Let".  377  ;  2  Sugd.  V.  &  P.  277  ;  Henry 
V.  Morgan,  3  Binn.  497  ;  Boggs  v.  Varner,  6  Watts  &  S.  469  ;  Bracken  v. 
Miller,  4  Watts  &  S.  111. 

«  Harrison  v.  Forth,  Pr.  Ch.  51 ;  Sweet  v.  Southcote,  2  Bro.  Ch.  66  ; 
Brandlyn  v.  Ord,  1  Atk.  571  ;  Lowther  v.  Charlton,  2  Atk.  242;  Lacy  v. 
Wilson,  4  Munf.  313  ;  Fletcher  v.  Peck,  6  Cranch,  87  ;  Boone  v.  Chiles, 
10  Pet.  187  ;  Truluck  v.  Peoples,  3  Kelly,  446  ;  Griffith  v.  Griffith,  9  Paige, 
315;  Boynton  v.  Reese,  8  Pick.  329  ;  Mott  v.  Clarke,  9  Barr,  399;  Trull 
V.  Bigelow,  16  Mass.  406  ;  Church  v.  Ruland,  64  Pa.  St.  441 ;  Parker  v. 
Crittenden,  37  Conn.  145 ;  Terrett  v.  Crombie,  6  Lansing,  82. 

*  Bovey  v.  Smith,  1  Vern.  149 ;  Schutt  v.  Large,  6  Barb.  373  ;  Law- 
rence V.  Stratton,  6  Cush.  163 ;  Church  v.  Ruland,  64  Pa.  St.  441. 

8  Mayor  v.  Williams,  6  Md.  235. 

«  Rogers  v.  Jones,  8  N".  H.  264;  Plumb  v.  Fluitt,  2  Anst.  432  ;  Griffith 
V.  Griffith,  1  Hoff.  153;  Farnsworth  v.  Child,  4  Mass.  637. 

285 


§  224.]  CONSTRUCTIVE   TRUSTS,  [CHAP,  VI. 

cording  of  a  deed  is  made  notice  to  all  subsequent  purchasers, 
though  it  frequently  happens  that  purchasers  have  no  actual 
knowledge  from  the  record ;  but  that  does  not  rebut  the  fact 
of  notice,  for  the  reason  that  it  is  their  duty  to  examine  the 
records ;  they  are  therefore  conclusively  affected  "vvith  notice 
of  all  of  the  record  which  is  legally  made,  and  which  it  was 
their  duty  to  examine.^  Lis  pendens  is  constructive  notice ; 
that  is,  a  suit  pending  in  the  public  courts,  concerning  the 
title  of  the  property  purchased,  is  constructive  notice  to  the 
purchaser.^  Actual  possession  by  the  cestui  que  trust,  or 
some  person  other  than  the  vendor,  is  constructive  notice  to 
the  purchaser  that  there  is  some  claim,  title,  or  possession  of 
the  property  adverse  to  his  vendor ;  and  this  fact  should  imt 
him  upon  his  inquiry,  for  if  he  had  inquired  he  would  have 
discovered  the  exact  title  and  the  equitable  claims  upon  it ; 
he  therefore  has  constructive  notice.  There  are  many  other 
facts  and  circumstances  from  which  courts  will  presume  that 
a  purchaser  had  notice  of  the  equities  attached  to  an  estate.^ 
If  in  any  way  a  person  purchases,  with  what  the  law  con- 
strues to  be  full  notice  that  another  has  a  legal  or  equitable 
title  to  the  property,  or  that  he  has  been  deprived  of  his 
interest  by  accident,  mistake,  or  fj-aud,  he  will  be  held  as  "a 
trustee.* 

§  224.  The  same  general  principles  affect  the  sales  of  prop- 
erty by  executors  or  administrators.  Executors  can  deal  with 
real  estate  only  as  they  are  empowered  to  do  so  by  the  will  of 
testators.  Purchasers  must  therefore  look  to  the  will  for  the 
power  of  the  executor.     If  they  purchase  in  good  faith  from 

1  Maul  V.  Reder,  59  Pa.  St.  167  ;  Smith  v.  Burgess,  133  Mass.  511,  514. 

2  Drew  V.  Norbury,  9  Ir.  Eq.  176.  Upon  the  filing  of  a  bill  in  equity, 
and  before  the  service  of  the  subpoena,  a  suit  is  lis  pendens.  Ibid.  See 
Leitch  V.  Wells,  48  N.  Y.  591. 

8  It  is  impossible  to  state  all  the  distinctions  that  have  been  estab- 
lished upon  this  fruitful  source  of  litigation.  The  principles  are  most 
ably  stated  in  the  notes  to  Le  Neve  v.  Le  Neve,  2  Lead.  Ca.  Eq.  23  ;  Cal- 
houn V.  Burnett,  40  Miss.  599;  Pilcher  v.  Rawlins,  L.  R.  11  Eq.  53 ;  Car- 
ter V.  Carter,  3  K.  &  J.  687;  Farris  v.  Dunn,  7  Bush,  276. 

4  Forbes  v.  Hall,  34  111.  159. 
286 


CHAP.  VI.]  ADMINISTRATOR.  [§  225. 

an  executor  with  power  to  sell,  they  will  take  a  good  title ; 
but  if  they  make  a  fraudulent  or  collusive  purchase  from  an 
executor  with  full  power  to  sell,  they  still  hold  the  estate 
upon  the  same  trusts  to  which  it  was  subject  in  the  hands  of 
the  executor.  If  there  are  no  powers  to  sell  real  estate  given 
to  executors  in  the  will,  they  have  no  authority  to  deal  with 
it,  unless  it  is  wanted  to  pay  debts  or  legacies,  in  which  case 
both  executors  and  administrators  must  obtain  an  order  or 
license  from  the  Court  of  Probate  to  sell.  In  such  case  the 
purchaser  must  see  that  the  order  of  the  court  was  regularly 
obtained,  and  that  it  is  properly  complied  with.  Any  fraud 
or  collusion  on  the  part  of  the  executor  or  administrator,  in 
procuring  the  decree  of  the  court  or  in  the  conduct  of  the 
sale,  would  convert  the  purchaser  mto  a  trustee  for  heirs-at- 
law  or  other  persons  interested. ^  So,  if  an  executor  or  ad- 
ministrator purchases  indirectly  of  himself  through  a  third 
person,  and  takes  a  deed  to  himself  through  such  third  person, 
the  sale  will  be  void,  or  the  estate  will  be  held  in  trust  by 
such  administrator  or  executor  for  the  heirs-at-law  or  other 
persons  interested. 

§  225.  An  executor  or  ^administrator  generally  has  full 
power  over  the  personal  estate  under  his  charge.  Therefore 
he  may  sell  the  same  and  give  a  good  title  to  a  purchaser.^ 
This  is  the  rule  at  common  law,  and  it  prevails  in  all  States 
where  it  is  not  changed  by  statute.  In  some  States  there  are 
statutes  that  direct  executors  or  administrators  to  sell  the 
personal  estate  of  the  deceased  at  public  auction,  or  in  such 

J  Brush  V.  Ware,  15  Pet.  93 ;  Brock  v  Phillips,  2  Wash.  68. 

2  Field  V.  Schieffelin,  7  Johns.  Ch.  155;  Rayner  v.  Pearsall,  3  Johns. 
Ch.  578;  Hertell  v.  Bogert,  9  Paige,  57;  Yerger  v.  Jones,  16  How.  37; 
Miles  V.  Durnford,  2  Sim.  (n.  s.)  234;  Tyrrell  v.  Morris,  1  Dev.  &  Batt. 
5.59;  Hunter  v.  Lawrence,  11  Grat.  117;  Bond  v.  Ziegler,  1  Kelly,  324; 
Crane  v.  Drake,  2  Vern.  616;  Ewer  i\  Corbett  2  P.  Wms.  148;  Newland 
v.  Champion,  1  Ves.  105;  Jacomb  v.  Harwood,  2  Ves.  268;  Elmlie  v. 
McAulay,  3  Bro.  Ch.  626;  Utterson  v.  Maire,  4  Bro.  Ch.  270;  2  Ves.  Jr. 
95;  Scott  V.  Tyler,  2  Dick.  725;  Bonney  v.  Ridgard,  1  Cox,  145;  Dick- 
son V.  Lockyer,  4  Ves.  42;  Dorau  v.  Simpson,  Id.  665;  Hill  v.  Simpson,  7 
Ves.  152 

287 


§  225.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI, 

manner  as  the  court  having  jurisdiction  over  the  administra- 
tion sliall  order.  In  such  States,  purchasers  must  see  to  it 
that  executors  and  administrators,  in  making  sales,  pursue 
the  course  marked  out  for  them  by  the  statutes  or  by  the 
orders  of  the  court,  or  they  will  take  no  title.^  In  all  sales  by 
executors  and  administrators  good  faith  is  indispensable.  If 
therefore  a  purchaser  knows,  or  has  notice,  that  a  sale  by  an 
administrator  is  fraudulent  or  collusive,  or  is  a  devastavit,  or 
is  for  the  purpose  of  a  misapplication  of  the  assets,  his  title 
will  not  be  allowed  to  prevail  against  the  beneficial  interests 
of  creditors,  specific  or  residuary  legatees,  or  next  of  kin  or 
heirs.2  Equity  will  examine  the  transaction  ;  and  if  circum- 
stances appear  sufficient  to  put  the  purchaser  on  his  guard 
or  upon  his  inquiry,  the  sale  will  be  avoided  or  the  purchaser 
will  be  held  as  a  trustee.^  If  the  transfer  is  by  way  of  pledge 
or  sale  for  the  security  or  payment  of  the  private  debt  of  the 
administrator,  it  will  be  equivalent  to  full  notice  of  the  ille- 
gality of  the  transaction,  and  fraudulent.*  But  if  an  admin- 
istrator make  a  pledge  of  the  assets  for  a  contemporaneous 
advance  of  money  for  the  use  of  the  estate,  it  will  be  held  to 

1  Fambro  v.  Gantt,  12  Ala.  305,  Bond  v.  Barksdale,  4  Des.  526;  Bond 
V.  Ziegler,  1  Kelly,  324 ;  Baines  v.  McGee,  1  Sm.  &  M.  208. 

2  Petrie  v.  Clark,  11  Serg.  &  R.  388;  Wylson  v.  INIoore,  1  M.  &  K.  337; 
Cole  V.  Miles,  10  Hare,  179;  Saxon  v.  Barksdale,  4  Des.  526;  McXair's 
App.,4  Rawle,  155;  Johnson  v.  Johnson,  2  Hill,  Eq.  277;  Mead  v.  Or- 
rery, 3  Atk.  235;  McLeod  v.  Drummond,  14  Ves.  361;  17  Ves.  109;  Field 
V.  Schieffelin,  7  Johns.  Ch.  155;  Colt  v.  Lasnier,  9  Cow.  320;  Sacia  v. 
Berthoud,  17  Barb.  15 ;  Williamson  v.  Branch  Bank,  7  Ala.  900 ;  Swink 
V.  Snodgrass,  17  Ala.  653;  Garnett  v.  Macon,  6  Call,  361;  Dodson  v.  Simp- 
son, 2  Rand.  294;  Graff  v.  Castleman,  5  Rand.  204;  Parker  i-.  Gillian, 
10  Yerg.  394;  Williamson  v.  Morton,  2  Md.  Ch.  94;  Lowry  v.  Farmers' 
Bank,  10  P.  L.  J.  3;  Am.  L.  J.  (n.  s.)  111. 

3  McNeillie  v.  Acton,  4  De  G.,  M.  &  G.  744. 

4  Petrie  v.  Clark,  11  Serg.  &  R.  388;  Shaw  v.  Spencer,  100  Mass.  382; 
Judson  V.  National  City  Bank,  8  Blatch.  430,  and  cases  cited;  Pendleton 
V.  Fay,  2  Paige,  202;  Bayard  v.  Farmers',  &c.  Bank,  52  Pa.  St.  232; 
Baker  v.  Bliss,  39  N.  Y.  76;  Carr  v.  Hilton,  1  Cmtis,  390-393;  Field  v. 
Schieffelin,  7  Johns.  Ch.  155;  Williamson  v.  Morton,  2  Md.  Ch.  94;  Gar- 
rard V.  R.  R.  Co.,  29  Pa.  St.  154;  CoUinson  v.  Lister,  7  De  G.,  M.  &  G. 
634;  Dodson  v.  Simpson,  2  Rand.  294;  Williamson  f.  Branch  Bank,  7 
Ala.  906. 

288 


CHAP.  VI.]  ADMINISTRATOR.  [§  225. 

be  a  valid  transaction ;  or  if  the  sale  or  pledge  or  mortgage  is 
afterwards  made  for  a  previous  advance  made  in  good  faith 
for  the  alleged  benefit  of  the  estate,  it  will  be  valid. ^  Of 
course  knowledge  on  the  part  of  the  purchaser,  that  the 
executor  or  administrator  is  dealing  with  the  assets  in  a  fidu- 
ciary capacity,  is  not  enough  to  raise  any  suspicion,  for  the 
reason  that  it  is  the  duty  of  the  administrator  to  dispose  of 
the  assets  and  settle  the  estate ;  and  so  a  trustee  may  sell 
and  transfer  absolutely  the  personal  property  of  his  trust,  if 
he  have  power  to  vary  the  securities ;  and  if  he  sells  and 
transfers  notes,  stocks,  or  other  securities  standing  in  his 
name  as  trustee,  the  purchaser,  from  that  fact  alone,  cannot 
be  holden  as  a  constructive  trustee,  although  the  trustee  in 
fact  transfers  such  securities  or  order  to  obtain  money  for  his 
own  personal  use.  The  mere  fact  that  the  word  trustee  is 
on  the  face  of  the  securities  cannot  put  a  purchaser  to  any 
inquiry  beyond  ascertaining  whether  the  trustee  has  power 
to  vary  the  securities.  If  he  has  such  power,  a  purchaser  in 
good  faith  will  be  protected,  although  the  trustee  use  the 
money  for  his  private  purposes.^  But  if  a  purchaser  takes 
securities  from  a  trustee,  with  the  word  trustee  upon  their 
face,  in  payment  of  a  private  debt  due  from  the  trustee,  the 
sale  may  be  avoided  by  the  cestui  que  trust,  or  the  purchaser 
may  be  held  as  a  trustee.^  And  so,  if  an  executor,  guardian, 
or  trustee  hold  certificates  of  shares  in  a  corporation,  he  may 
sell  the  same,  and  the  corporation  would  be  protected  in 
issuing  new  certificates  to  the  purchaser,  but  if  the  corpora- 
tion knew  that  the  sale  or  transfer  was  a  breach  of  the  trust 
or  a  devastavit,  it  might  be  held  as  a  constructive  trustee  for 
the  persons  beneficially  interested ;  but  the  mere  fact  that 
the-  fiduciary  character  of  the  vendor  appeared  upon  the  face 
of  the  transaction  would  put  the  corporation  upon  no  inquiry 

1  Petrie  v.  Clark,  11  Serg.  &  R.  388;  Miles  v.  Durnford,  2  Sim.  (n  s  ) 
234;  Russell  v.  Plaice,  18  Beav.  21;  11  Jur.  124 ;  19  Jur.  44.5. 

2  Ashton   V.  Atlantic   Bank,  3  Allen,  217;  Creigton  v.  Ringle,  3  S.  C. 
77;  Dillaye  v.  Com.  Bank,  51  N.  Y.  355. 

8  Shaw  V.  Spencer,  100  Mass.  388 ;  Jaudon  v.  National  Bank,  8  Blatcli. 
430;  Duncan  v.  Jaudon,  14  Wall.  115, 

VOL.  I— 19  289 


§  226.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

beyond  ascertaining  whether  he  had  authority  to  change  the 
securities.^ 

§  226.  The  statute  of  frauds  is  no  obstacle  in  the  way  of 
proof  of  an  actual  or  constructive  fraud  in  the  sale  of  prop- 
erty .^  Parol  evidence  is  admissible  to  establish  a  trust,  even 
against  a  deed  absolute  on  its  face,  if  it  would  be  a  fraud  to 
set  up  the  form  of  the  deed  as  conclusive.^  Lord  Hardwicke 
stated  "  that  the  court  adhered  to  this  principle,  that  the 
statute  of  frauds  should  never  be  understood  to  protect  fraud, 
and  therefore  wherever  a  case  is  infected  with  fraud,  the  court 
will  not  suffer  the  statute  to  protect  it."  *  Lord  Thurlow 
added,  that  "  the  moment  you  impeach  a  deed  for  fraud  you 
must  either  deny  the  effect  of  fraud  upon  the  deed,  or  you 
must  admit  parol  evidence  to  prove  it."  ^  If  this  was  not  so, 
the  law  would  be  reduced  to  this  absurdity,  —  if  a  fraud  could 
once  succeed  in  procuring  the  transaction  to  be  reduced  to 
writing  and  signed  by  the  parties,  it  would  be  protected  by 
the  law  itself,  and  there  w^ould  be  no  possible  means  of  reach- 
ing and  correcting  the  wrong.  But  in  such  case  the  bill  must 
contain  a  clear  and  distinct  charge  of  fraud.^  Therefore, 
whenever  the  bill  sets  out  a  clear  case  of  fraud,  parol  evidence 
will  be  admitted  to  prove  it,  even  if  the  effect  of  such  evidence 
is  to  contradict,  vary,  alter,  or  destroy  written  instruments.'^ 

1  Ashton  V.  Atlantic  Bank.  3  Allen.  217,  and  cases  cited  note  1. 

2  Kayser  v.  Maugham,  8  Col.  232;  Bohm  v.  Bohm,  9  id.  100. 
8  Hail  V.  Livingston,  3  Del.  Ch.  348. 

*  Reach  v.  Kennigate,  1  Ves.  125 ;  Young  v.  Peachey,  2  Atk.  2o8 ; 
Walker  v.  Walker,  Id.  98;  Hutchins  v.  Lee,  1  Atk.  448;  Montacute  v. 
Maxwell,  1  P.  Wms.  620;  Lincoln  v.  Wright,  4  DeG.  &  J.  16;  Childers 
V.  Childers,  1  De  G.  &  J.  482;  Davis  v.  Oty,  35  Beav.  208;  Ryan  v.  Dox, 
34  N.  Y.  307 ;  Haigh  v.  Kaye,  L.  R.  7  Ch.  474. 

8  Shelborne  v.  Inchinquin,  1  Bro.  Ch.  350;  Hare  v.  Sherewood,  1  Ves. 
Jr.  243;  Townshend  r.  Stangroom,  6  Ves.  333:  Pym  v.  Blackburn,  3  Ves. 
38  n  ,  and  see  Conolly  v.  Howe,  5  Ves.  701. 

6  Irnham  v.  Child,  1  Bro.  Ch.  94;  Portmore  ?;.  Morris,  2  Bro.  Ch.  219; 
Forsyth  v.  Clark,  3  Wend.  637;  Gouverneur  v.  Elmendorf,  5  Johns.  Ch. 
79;  Kennedy  v.  Kennedy,  2  Ala.  571  ;  Skrine  v.  Simmons,  11  Ga.  401; 
McCalmont  v.  Rankin,  8  Have,  18. 

^  Young  V.  Peachey,  2  Atk.  257  ;  Thynn  v.  Thynn,  1  Vern.  296;  Irn- 
290 


CHAP.  VI.]  STATUTE    OP    FEAUDS.  [§  226. 

The  mere  refusal  of  a  grantee  to  execute,  or  the  denial  of  the 
existence  of  an  invalid  parol  trust  upon  which  she  promised 
to  hold  the  property,  is  not  such  a  fraud  as  will  take  the  case 
out  of  the  statute.^  But  where  a  valuable  interest  passes  to 
one  on  the  faith  of  a  contract  he  refuses  to  perform,  equity 
will  compel  restitution  or  give  other  appropriate  relief. ^  In 
any  case  if  the  trust  arises  from  the  acts  of  the  parties,  and  not 
exclusively  from  their  agreements,  the  statute  of  frauds  is  not 
a  bar  to  the  proof.^     But  where  a  conveyance  in  trust  is  made 

ham  V.  Child,  1  Bro.  Ch.  93;  Cripps  v.  Gee,  4  Bro.  Ch.  475;  Oldham  v. 
Lechford,  2  Vern.  506;  Drakeford  v.  Wilks,  3  Atk.  539;  Reach  v.  Ken- 
nigate,  1  Ves,  125 ;  Amb.  67 ;  Pember  v.  Mathers,  1  Bro.  Ch.  52 ;  Wil- 
kinson r.  Bradfield,  1  Vern.  307;  Miller  i-.  Cotton,  5  Ga.  346;  Christ  v. 
Diffenbach,  1  Serg.  &  R.  464;  Watkins  v.  Stockett,  6  H.  &  J.  345;  Elliott 
V.  Connell,  5  Sm.  &  M.  91;  Barrell  v.  Hawrick,  42  Ala.  60;  Judd  u. 
Mosely,  31  Iowa,  433. 

1  Scott  r.  Harris,  113  111.  447;  Tatge  v.  Tatge,  34  Minn.  275;  Town- 
send  V.  Fenton,  32  Minn.  482. 

^  Randall  v.  Constans,  33  Minn.  329  ;  Johnson  v.  Krassin,  25  Minn. 
118. 

8  Judd  r.  Mosely,  30  Iowa,  428;  Bryant  v.  Hendricks,  5  Towa,  256; 
Kincell  v.  Feldman,  22  Iowa,  363;  Ferguson  v.  Hass,  64  N.  C.  772; 
Squire's  App.,  70  Pa.  St.  268;  Reese  v.  Wallace,  113  111.  59.5.  And  so 
the  statute  of  frauds  is  not  a  bar  to  relief  in  other  cases  of  absolute  deeds, 
where  they  are  used  in  a  manner  and  for  purposes  not  contemplated  at 
the  time  of  their  execution.  Thus  a  deed  may  be  shown  to  be  a  mortgage 
or  security  for  a  debt,  although  there  was  no  written  defeasance,  and  no 
fraud,  accident,  or  mistake.  This  proposition  has  been  much  discussed. 
The  latest  case,  Campbell  v.  Dearborn,  109  Ma.ss.  130,  contains  a  review 
of  the  authorities  and  a  succinct  statement  of  the  doctrine ;  and  as  it  is 
upon  a  subject  closely  connected  with  constructive  trusts,  the  case  is 
given  at  large. 

"  From  those  facts,  and  from  the  bill  and  answer,  we  think  these  points 
must  be  taken  to  be  established;  to  wit,  1st,  that  the  plaintiff  had  pur- 
chased the  parcel  of  land  in  controversy,  and  held  a  contract  from  Tirrill 
for  its  conveyance  to  himself  upon  payment  of  the  sum  of  S5500  ;  2d,  that 
the  money  was  advanced  by  the  defendant  to  the  plaintiff  as  a  loan,  and 
the  deed  from  the  plaintiff  to  the  defendant  was  given  by  way  of  security 
therefor.  The  report  finds,  'from  all  the  circumstances  surrounding 
the  transaction,  and  from  the  acts  and  declarations  of  the  parties  at  the 
time,  that  the  plaintiff  believed  and  had  reason  to  believe '  this  to  be 
the  case. 

291 


§  226.]  CONSTRUCTIVE    TRUSTS.  [CHAP.  VI. 

voluntarily  without  solicitation  or  undue  influence,  a  mere  prom- 
ise to  hold  in  trust  is  within  the  statute.^     If  a  bill  is  brought 

"  From  the  whole  case  we  are  satisfied  that  it  was  a  transaction  be- 
tween borrower  and  lender,  and  not  a  real  purchase  of  the  land  by  the 
defendant.  We  are  brought,  then,  to  the  question,  Can  equity  relieve 
in  such  a  case? 

"  The  decisions  in  the  courts  of  the  United  States,  and  the  opinions 
declared  by  its  judges,  are  uniform  in  favor  of  the  existence  of  the  power, 
and  the  propriety  of  its  exercise  by  a  court  of  chancery.  Hughes  v.  Ed- 
wards, 9  Wheat.  489 ;  Sprigg  v.  Bank  of  Mount  Pleasant,  14  Pet.  201, 208; 
Morris  v.  Nixon,  1  How.  118;  Russell  v.  Southard,  12  How.  139;  Taylor 
V.  Luther,  2  Sumner,  228;  Flagg  v.  Mann,  Id.  486;  Jenkins  v.  Eldredge, 
3  Story,  181;  Bentley  v.  Phelps,  2  Woodb.  &  Min.  426;  Wyman  v. 
Babcock,  2  Curtis  C.  C.  386,  398  ;  s.  c.  19  How.  289.  Although  not 
bound  by  the  authority  of  the  courts  of  the  United  States  in  a  matter  of 
this  sort,  still  we  deem  it  to  be  important  that  uniformity  of  interpreta- 
tion and  administration  of  both  law  and  equity  should  prevail  in  the 
State  and  federal  courts.  We  are  disposed,  therefore,  to  yield  much 
deference  to  the  decisions  above  referred  to,  and  to  follow  them  unless  we 
can  see  that  they  are  not  supported  by  sound  principles  of  jurisprudence, 
or  that  they  conflict  with  rules  of  law  already  settled  by  the  decisions  of 
our  own  courts. 

"  We  cannot  concur  in  the  doctrine  advanced  in  some  of  the  cases,  that 
the  subsequent  attempt  to  retain  the  property,  and  refusal  to  permit  it  to 
be  redeemed,  constitute  a  fraud  or  breach  of  trust,  which  affords  ground 
of  jurisdiction  and  judicial  interference.  There  can  be  no  fraud  or  legal 
wrong  in  the  breach  of  a  trust  from  which  the  statute  withholds  the 
right  of  judicial  recognition.  Such  conduct  may  sometimes  appear  to 
relate  back,  and  give  character  to  the  original  transaction,  by  showing,  in 
that,  an  express  intent  to  deceive  and  defraud.  But  ordinarily  it  will 
not  be  connected  with  the  original  transaction  otherwise  than  construc- 
tively, or  as  involved  in  it  as  its  legitimate  consequence  and  natural  fruit. 
In  this  aspect  only  can  we  regard  it  in  the  present  case. 

"The  decisions  in  the  federal  courts  go  to  the  full  extent  of  affording 
relief,  even  in  the  absence  of  proof  of  express  deceit  or  fraudulent  pur- 
pose at  the  time  of  taking  the  deed,  and  although  the  instrument  of 
defeasance  '  be  omitted  by  design  upon  mutual  confidence  between  the 
parties.'  In  Russell  v.  Southard,  12  How.  139,  148,  it  is  declared  to  be 
the  doctrine  of  the  court,  '  that,  when  it  is  alleged  and  proved  that  a  loan 
on  security  was  really  intended,  and  the  defendant  sets  up  the  loan  as 
payment  of  purchase-money,  and  the  conveyance  as  a  sale,  both  fraud  and 
a  vice  in  the  consideration  are  sufficiently  avei'red  and  proved  to  require 


1  McClain  i'.  McClain,  57  Iowa,  167. 
292 


CHAP.  VI.]  STATUTE    OP    FRAUDS.  [§  226. 

for  relief,  on  the  ground  that  the  instrument  is  framed  con- 
trary to  the  intention  of  the  parties  through  mistake,  acci- 
dent, surprise,  or  fraud,  in  such  case,  Lord  Hardwicke  said 

a  court  of  equity  to  hold  the  transaction  to  be  a  mortgage.'  The  con- 
clusion of  the  court  was,  '  that  the  transaction  was  iu  substance  a  loan  of 
money  upon  security  of  the  farm,  and,  being  so,  a  court  of  equity  is 
bound  to  look  through  the  forms  in  which  the  contrivance  of  the  lender 
has  enveloped  it,  and  declare  the  conveyance  of  the  land  to  be  a 
mortgage.' 

"  This  doctrine  is  analogous,  if  not  identical,  with  that  which  has  so  fre- 
quently been  acted  upon  as  to  have  become  a  general  if  not  universal 
rule,  in  regard  to  conveyances  of  land  where  provision  for  reconveyance  is 
made  in  the  same  or  some  contemporaneous  instrument.  In  such  cases, 
however  carefully  and  explicitly  the  writings  are  made  to  set  forth  a  sale 
with  an  agreement  for  repurchase,  and  to  cut  off  and  renounce  all  right  of 
redemption  or  reconveyance  otherwise,  most  courts  have  allowed  parol 
evidence  of  the  real  nature  of  the  transaction  to  be  given,  and,  upon 
proof  that  the  transaction  was  really  and  essentially  upon  the  footing  of  a 
loan  of  money,  or  an  advance  for  the  accommodation  of  the  grantor,  have 
coiisLrued  the  instruments  as  constituting  a  mortgage;  holding  that  any 
clause  or  stipulation  therein,  which  purports  to  deprive  the  borrower  of 
his  equitable  rights  of  redemption,  is  oppression,  against  the  policy  of  the 
law,  and  to  be  set  aside  by  the  courts  as  void.  4  Kent,  Com.  (6th  ed.) 
159;  Cruise,  Dig.  (Greenl.  ed.)  tit.  xv.  c.  1,  §  21;  2  Washb.  Real  Prop. 
(3d  ed.)  42;  Williams  on  Real  Prop.  353;  Story,  Eq.  §  1019;  Adams,  Eq. 
112;  3  Lead.  Cas.  in  Eq.  (3d  Am.  ed.);  White  &  Tudor's  notes  to  Thorn- 
brough  ij.  Baker,  pp.  605  [*874]  et  seq  ]  Hare  &  Wallace's  notes  to  s.  c. 
pp.  624  [*891]  et  seq. 

"The  rule  has  been  frequently  recognized  in  Massachusetts,  where,  until 
1855,  the  courts  have  held  their  jurisdiction  of  foreclosure  and  redemption 
of  mortgages  to  be  limited  to  cases  of  a  defeasance  contained  in  the  deed 
or  some  other  instrument  under  seal.  Erskine  v.  Townsend,  2  Mass.  493; 
Killeran  v.  Brown,  4  Mass.  443;  Taylor  v.  Weld,  5  Mass.  109;  Carey  v. 
Rawson,  8  Mass.  159;  Parks  v.  Hall,  2  Pick.  206,  211;  Rice  v.  Rice, 
4  Pick.  349;  Flagg  v.  Mann,  14  Pick.  467,  478;  Eaton  v.  Green,  22  Pick. 
526.  The  case  of  Flagg  v.  Mann  is  explicit,  not  only  upon  the  authority 
of  the  court  thus  to  deal  with  the  written  instruments  of  the  parties,  but 
also  upon  the  point  of  the  competency  of  parol  testimony  to  establish  the 
facts  by  which  to  control  their  operation;  although,  upon  consideration  of 
the  parol  testimony  in  that  case,  the  court  came  to  the  conclusion  that 
there  was  a  sale  in  fact,  and  not  a  mere  security  for  a  loan. 

"  By  the  statute  of  1855,  c.  194,  §  1,  jurisdiction  was  given  to  this  court 
in  equity  'in  all  cases  of  fraud,  and  of  conveyances  or  transfers  of  real 
estate  in  the  nature  of  mortgages.'     Gen.  Sts.  c.  113,  §  2.     The  authority 

293 


§  226.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

"  that  a  mistake  could  never  be  proved  but  by  parol  evidence, 
consequently  it  must  be  received."  ^     But  where  through  mis- 

of  the  courts  under  this  clause  is  ample.  It  is  limited  only  by  those  cou- 
sideratious  which  guide  courts  of  full  chancery  powers  in  the  exercise  of 
all  those  powers. 

"  If,  then,  the  advantage  taken  of  the  borrower  by  the  lender,  in  re- 
quiring of  him  an  agreement  that  he  will  forego  all  right  of  redt- mption 
in  case  of  non-payment  at  the  stipulated  time,  or  an  absolute  deed  with 
a  bond  or  certificate  back,  which  falsely  recites  the  character  of  the  trans- 
action, representing  it  to  be  a  sale  of  the  land  with  a  privilege  of  repur- 
chase, be  a  sufficient  ground  for  interference  in  equity  by  restricting  the 
operation  of  the  deed,  and  converting  the  writings  into  a  mortgage,  con- 
trary to  the  expressed  agreement,  it  is  difficult  to  see  why  the  court  may 
not  and  ought  not  to  interpose  to  defeat  the  same  wrong,  when  it  attempts 
to  reach  its  object  by  the  simpler  process  of  an  absolute  deed  alone.  In 
each  case  the  relief  is  contrary  to  the  terms  of  the  written  agreement.  In 
one  case  it  is  against  the  express  words  of  the  instrument  or  clause  relied 
on  as  a  defeasance,  on  the  ground  that  it  was  oppressive  and  wrongful  to 
withhold  or  omit  the  formal  defeasance.  In  strictness,  there  is  no  de- 
feasance in  either  case.  The  wrong  on  the  part  of  the  lender  or  grantor, 
which  gives  the  court  its  power  over  his  deed,  is  the  same  in  both.  '  For 
they  who  take  a  conveyance  as  a  mortgage  without  any  defeasance  are 
guilty  of  a  fraud.'  Cotterell  v.  Purchase,  Cas.  temp.  Talbot,  61.  See 
also  Barnhart  v.  Greenshields,  9  Moore,  P.  C.  18;  Baker  v.  Wind.  1  Ves. 
Sen.  160;  Mahlor  v.  Lees,  2  Atk.  494;  Williams  v.  Owen,  5  Myl.  &  Cr. 
303;  Lincoln  v.  Wright,  4  De  Gex  &  Jones,  16. 

"  As  a  question  of  evidence,  the  principle  is  the  same.  In  either  case 
the  parol  evidence  is  admitted,  not  to  var}',  add  to,  or  contradict  the  writ- 
ings, but  to  establish  the  fact  of  an  inherent  fault  in  the  transaction  or 
its  consideration,  which  affords  ground  for  avoiding  the  effect  of  the 
writings  by  restricting  their  operation,  or  defeating  them  altogether. 
This  is  a  general  principle  of  evidence,  well  established  and  recognized, 
both  at  law  and  in  equity.  Stackpole  v.  Arnold,  11  Mass.  27;  Fletcher 
V.  WlUard,  14  Pick.  464;    1  Greenl.   Ev.  §  284;  Perry  on  Trusts,  §  226. 


^  Baker  v.  Paine,  1  Ves.  457;  Towers  v.  IMoor,  2  Vern.  98;  Langley  v. 
Brown,  2  Atk  203;  Townshend  v.  Stangroom,  6  Yes.  328;  Taylor  v. 
Radd,  5  Ves.  595,  596,  n.:  Henkle  v.  Royal  Insurance  Co.,  1  Ves.  318; 
Rogers  v.  Earl,  1  Dick.  294;  Barstow  r.  Kilvington,  5  Ves.  593;  Hunt  v. 
Rousmanier,  8  Wheat  174;  Gower  v.  Sternes.  2  Whart.  75;  Keisselbrock 
t\  Livingston,  4  Johns.  Ch.  144;  Peterson  v.  Grover,  20  Me.  363;  Newsou 
V.  Bufferlow,  1  Dev.  Eq.  379;  Goodell  v.  Freed.  15  Vt.  448;  Harrison  r. 
Howard,  1  Ired.  Eq.  407;  Blanchard  v.  Moore,  4  J.  J.  Marsh.  471;  Perry 
V.  Pearson,  1  Plumph.  431. 

294 


CHAP.  VI.]  STATUTE   OF   FRAUDS.  [§  226. 

take  of  law,  or  carelessness  or  inattention,  an  important  pro- 
vision is  omitted  from  a  deed,  and  no  fraud  is  charged  or 

"  The  reasons  for  extending  the  doctrine,  in  equity,  to  absolute  deeds, 
where  there  is  no  provision  for  reconveyance,  ai-e  ably  presented  by  Hare 
&  Wallace  in  their  notes  to  Woollam  v.  Hearne,  2  Lead.  Cas.  in  Eq.  (3d 
Am.  ed.)  676,  and  to  Thornbrough  v.  Baker,  3  id.  624.  See  also  Adams 
Eq.  Ill;  1  Sugd.  Vend.  (8th  Am.  ed  ),  Perkins's  notes,  pp.  267,  268,  302, 
303.  The  doctrine  thus  extended  is  declared,  in  numerous  decisions,  to 
prevail  in  New  York;  also  in  Vermont  and  several  other  States.  Mr. 
Washburn,  in  his  chapter  on  mortgages,  §  1,  has  exhibited  the  law  as  held 
in  the  different  States,  in  this  particular ;  and  the  numerous  references 
there  made,  as  well  as  by  the  annotators  in  the  other  treatises  which  we 
have  cited,  render  it  superfluous  to  repeat  them  here.  2  Washb.  Real 
Prop.  (3d  ed.)  35  et  seq. 

"  Upon  the  whole,  we  are  convinced  that  the  doctrine  may  be  adopted 
without  violation  of  the  statute  of  frauds,  or  of  any  principle  of  law  or 
evidence;  and,  if  properly  guarded  in  administration,  may  prove  a  sound 
and  salutary  principle  of  equity  jurisprudence.  It  is  a  power  to  be  exer- 
cised with  the  utmost  caution,  and  only  when  the  grounds  of  interference 
-are  fully  made  out,  so  as  to  be  clear  from  doubt. 

"  It  is  not  enough  that  the  relation  of  borrower  and  lender,  or  debtor 
and  creditor,  existed  at  the  time  the  transaction  was  entered  upon.  Ne- 
gotiations, begun  with  a  view  to  a  loan  or  security  for  a  debt,  may  fairly 
terminate  in  a  sale  of  the  propeity  originally  proposed  for  security.  And 
if,  without  fraud,  oppression,  or  unfair  advantage  taken,  a  sale  is  the  real 
result,  and  not  a  form  adopted  as  a  cover  or  pi-etext,  it  should  be  sus- 
tained by  the  court.  It  is  to  the  determination  of  this  question  that  the 
parol  evidence  is  mainly  directed. 

"The  chief  inquiry  is,  in  mo.st  cases,  whether  a  debt  was  created  by 
the  transaction,  or  an  existing  debt,  which  formed  or  entered  into  the 
consideration,  continued  and  kept  alive  afterwards.  'If  the  purchaser, 
instead  of  taking  the  risk  of  the  subject  of  the  contract  on  himself,  takes 
a  security  for  repayment  of  the  principal,  that  will  not  vitiate  the  transac- 
tion, and  render  it  a  mortgage  security.'  1  Sugd.  Vend.  (8th  Am.  ed.) 
302,  in  support  of  which  the  citations  by  Mr.  Perkins  are  numerous.  But 
any  recognition  of  the  debt  as  still  subsisting,  if  clearly  established,  is 
equally  efficacious ;  as  the  receipt  or  demand  of  interest  or  part  payment. 
Eaton  V.  Green,  22  Pick.  526,  530. 

"  Although  proof  of  the  existence  and  continuance  of  the  debt,  for 
which  the  conveyance  was  made,  if  not  decisive  of  the  character  of  the 
transaction  as  a  mortgage,  is  most  influential  to  that  effect,  yet  the  ab- 
sence of  such  proof  is  far  from  being  conclusive  to  the  contrary.  Rice  v. 
Rice,  4  Pick.  349;  Flagg  v.  Mann,  14  Pick.  467,  478;  Russell  v.  South- 
ard, 12  How.  139 ;  Browne  v.  Dewey,  1  Sandf .  Ch.  56.     When  it  is  con- 

295 


§  226.]  CONSTRUCTIVE    TRUSTS.  [CHAP.  VI. 

proved,  parol  evidence  cannot  be  received  against  the  denial  of 
the  defendant  in  his  answer  to  reform,  vary,  or  defeat  the 
instrument.^     Parol   evidence,  however,  is  not  favorably  re- 

sidered  that  the  inquiry  itself  is  supposed  to  be  made  necessary  hy  tlie 
adoption  of  forms  and  outward  appearance  differing  from  tiie  reality,  it 
is  hardly  reasonable  that  the  absence  of  an  actual  debt,  manifested  by  a 
written  acknowledgment  or  an  express  promise  to  pay,  should  be  re- 
garded as  of  more  significance  than  the  absence  of  a  formal  defeasance.  It 
of  course  compels  the  party  attempting  to  impeach  the  deed,  to  make  out 
his  proofs  by  other  and  less  decisive  means.  But  as  an  affirmative  propo- 
sition it  cannot  have  much  force. 

"  A  mortgage  may  exist  without  any  debt  or  other  personal  liability 
of  the  mortgagor.  If  there  is  a  large  margin  between  the  debt  or  sum 
advanced  and  the  value  of  the  land  conveyed,  that  of  itself  is  an  assur- 
ance of  payment  stronger  than  any  p>romise  or  bond  of  a  necessitous  bor- 
rower or  debtor.  Hence  inadequacy  of  price,  in  such  case,  becomes  an 
important  element  in  establishing  the  character  of  the  transaction.  In- 
adequacy of  price  though  not  of  itself  alone  sufficient  ground  to  set  in 
motion  chancery  powers  of  the  court,  may  nevertheless  properly  be  effec- 
tive to  quicken  their  exercise,  where  other  sufficient  ground  exists:  Story, 
Eq.  §§239,  245,  246;  and  in  connection  with  other  evidence  may  afford 
strong  ground  of  inference  that  the  transaction  purporting  to  be  a  sale 
was  not  fairly  and  in  reality  so.  Kerr  on  Fraud  and  Mistake,  186  and 
note;  Wharf  v.  Howell,  5  Binn.  499. 

"  Another  <  ircumstance  that  may  and  ought  to  have  much  weight  is 
the  continuance  of  the  grantor  in  the  use  and  occupation  of  the  land  as 
owner,  after  the  appai'ent  sale  and  conveyance.  Cotterell  v.  Purchase, 
Cas.  temp.  Talbot,  61 ;  Lincoln  v.  Wright,  4  De  Gex  &  Jones,  16. 

"  These  several  considerations  have  more  or  less  weight,  according  to 
the  circumstances  of  each  case.  Conway  c.  Alexander,  7  Cranch,  218; 
Bentley  v.  Phelps,  2  Woodb.  &  Min.  426.  It  is  not  necessary  that  all 
should  concur  to  the  same  result  in  any  case.  Each  case  must  be  deter- 
mined upon  its  own  special  facts;  but  those  should  be  of  clear  and  de- 
cisive import  "  So,  if  it  is  necessary  for  an  absolute  grantee  to  come 
into  a  court  of  equity  for  relief,  as  for  a  loss  of  the  deeds,  the  court 
can  compel  him  to  do  equity,  as  to  make  a  settlement  upon  parties  en- 
titled to  a  settlement  by  parol  understanding.  Phillips  v.  Phillips,  50 
Mo.  603. 

1  Lemon  v.  Whitely,  4  Russ.  423;  Irnham  v.  Child,  1  Bro.  Ch.  92; 
Portmore  v.  Morris,  2  Bro.  Ch.  219;  Rich  v.  Jackson,  4  Bro.  Ch.  614;  6 
Ves.  334,  n.;  Jackson  v.  Cator,  5  Ves.  688;  Hare  v.  Sherwood,  1  Ves. 
Jr.  241;  Anon.  Skin.  159;  Mortimer  v.  Shortall,  2  Dr.  &  W.  363;  Alex- 
ander V.  Crosbie,  Llo.  &  Goo.  145;  London  R.  Co.  v.  Winter,  1  Cr.  &  Phil. 
57;  Garwood  v.  Eldridge,  1  Green,  Ch.  146;  Lyon  v.  Richmond,  2  Johns. 

296 


CHAP.  VI.]  STATUTE    OF    FRAUDS.  [§  228. 

ceived  by  courts  in  any  case,  and  they  will  not  act  upon  it 
against  written  instruments,  unless  it  is  exceedingly  clear  and 
certain,  and  uncontradicted  by  other  evidence.^  In  Pennsyl- 
vania, however,  a  different  rule  prevails,  and  parol  evidence 
of  the  verbal  agreements  and  stipulations  upon  the  faith  of 
which  the  contract  was  made,  is  received  in  evidence  to  con- 
trol its  operation  or  to  explain  its  meaning.^ 

§  227.  The  right  of  a  party  who  has  been  defrauded  of 
the  title  to  his  land  is  not  a  mere  right  of  action  to  set  the 
deed  aside,  but  it  is  an  equitable  estate  in  the  land  itself, 
which  may  be  sold,  assigned,  conveyed,  and  devised.^  In  tlie 
view  of  a  court  of  equity,  he  is  still  the  owner  of  the  estate, 
subject  to  repay  whatever  money  or  other  property  he  may 
have  received  from  the  fraudulent  grantee.  And  so  the  equita- 
ble interest  of  a  purchaser  under  a  contract  of  sale  is  of  that 
character  that  it  may  be  assigned  or  devised.* 

§  228.  Time  does  not  bar  a  direct  trust  where  the  relation 
of  trustee  and  cestui  que  trust  is  admitted  to  exist,  but  dili- 
gence must  be  used  to  establish  a  constructive  trust  on  the 

Ch.  60;  Wheaton  v.  Wheaton,  9  Conn.  96;  Hunt  v.  Rousmanier,  1  Pet. 
1;  Paikhurst  v.  Van  Cortlandt,  1  Johns.  Ch.  282;  Westbrook  v.  Harbe- 
son,  2  McCord,  Ch.  112;  Dwight  v.  Pomroy,  17  Mass.  303;  Robson  v. 
Harwell,  6  Ga.  589;  Chamness  v.  Crutchfield,  2  Ired.  Eq.  148;  Movau  v. 
Hayes,  1  Johns.  Ch.  339;  Ratcliff  v.  Ellison,  3  Rand.  537;  Richardson  v. 
Thompson,  1  Humph.  151. 

^  Barrow  v.  Greenhough,  3  Ves.  154;  Townshend  v.  Stangroom,  6 
Ves.  334;  Shelborne  v.  Inchinquin,  1  Bro.  Ch.  341  ;  Miller  v.  Gotten,  5 
Ga.  346.  See  the  whole  matter  elaborately  discussed  and  all  the  authori- 
ties collected  in  notes  to  Woollam  v.  Hearne,  2  Lead.  Ca.  Eq.  684;  Bark- 
ley  w.  Lane,  6  Bush,  58;  Collier  v.  Collier,  30  Ind.  32;  Lingenfitter  v. 
Richings,  62  Pa.  St.  128. 

2  Chalfant?'.  Williams,  35  Pa.  St.  212;  Clark  v.  Partridge,  2  Barr, 
13;  4  Barr,  106;  Oliver  v.  Oliver,  4  Rawle,  141;  Rearich  v.  Swinehart,  1 
Jones,  238 ;  Christ  v.  Diffenbach,  1  Serg.  &  R.  464. 

8  Stump  K.  Gaby,  2  De  G.,  M.  &  G.  623;  McKissick  v.  Pickle,  4  Har- 
ris, 140 ;  Kane  County  v.  Herrington,  50  111.  232. 

*  Stump  *'.  Gaby,  2  De  G.,  M.  &  G.  623;  Morgan  v.  Ilalford,  1  Sm.  & 
Gif.  101 ;  Cogswell  v.  Cogswell,  2  Edw.  Ch.  231 ;  Malin  v.  Malin,  1  Wend. 
625;  Clapper  v.  House,  6  Paige,  119;  Kent  v.  Mehaffey,  10  Ohio  St.  204. 

297 


§  229.]  CONSTRUCTIVE   TRUSTS,  [CHAP.  VI. 

cround  of  fraud.  A  court  of  equity  will  refuse  its  aid  to  stale 
demands,  where  a  party  has  slept  upon  his  rights,  or  has 
acquiesced  for  a  great  length  of  time.^  And  so  a  constructive 
trust  will  be  barred  by  long  acquiescence,  although  the  fraud 
was  evident  and  the  relief  was  originally  clear.^  It  is  difficult 
to  state  as  a  general  proposition  what  length  of  time  will  bar 
relief  from  the  consequences  of  a  fraud.  It  is  necessarily 
subject  to  the  equitable  discretion  of  the  court,  and  must  de- 
pend upon  the  nature  of  each  case  and  the  circumstances  of 
the  parties. 

§  229.  Therefore  no  certain  time  can  be  stated  as  a  limit 
beyond  which  relief  will  not  be  given.  In  several  cases 
twenty  years  has  been  held  to  be  a  bar ;  ^  and  so  where  one 

1  Smith  V.  Clay,  3  Bro.  Ch.  639.  n  ;  Cholmondeley  v.  Cliuton,  1  J.  & 
W.  151;  Chalmer  v.  Bradley,  Id.  .59;  Beckford  v.  Wade,  17  Ves.  97; 
I'ortlock  V.  Gardner,  1  Hare,  594;  Hawley  v.  Cramer,  4  Cow.  117;  Dob- 
son  v.  Racey,  3  Sandf.  Ch.  fJl ;  Powell  v.  Murray.  2  Edw.  Ch.  644;  10 
Paige,  256;  Piatt  v.  Vatier,  9  Pet.  405;  McKnight  v.  Taylor,  1  How.  161; 
Wagner  v.  Baird,  7  How.  231;  Veasie  v.  ^Villiams,  8  How.  134;  Hallett 
V.  Collins,  10  How.  174 ;  Hough  v.  Richardson,  3  Story,  659  ;  Gould  v. 
Gould,  3  Story,  516;  Peebles  v.  Reading,  8  Serg.  &R.  484;  Irvine  r. 
Robertson,  3  Rand.  549;  Colman  v.  Lyne,  4  Rand.  454;  Anderson  y. 
Burchell,  6  Grat  405;  2  Story's  Eq.  Jur.  §  1.520,  notes. 

"  Bonny  v.  Ridgard,  cited  4  Bro.  Ch.  138;  Andrew  v.  Wrigley,  4  Bro. 
Ch.  124;  Blennerhassett  v.  Day,  2  B.  &  B.  118;  Gregory  v.  Gregory, 
Cowp.  201;  Jac.  631;  Selsey  v.  Rhoades,  1  Bligh  (n.  s.),  1;  Champion  v. 
Rigby,  1  R.  &  M.  539;  Ex  parte  Granger,  2  Deac.  &  Ch.  459;  Collard  v. 
Hare,  2  R.  &  M.  675;  Norris  v.  Xeve,  3  Atk.  38;  Pryce  v.  Byrn,  5  Ves. 
681,  cited  Campbell  v.  Campbell,  Id.  678,  682;  Morse  v.  Royal,  12  Ves. 
3.55;  Medlicott  v.  O'Donnell,  1  B.  &  B.  156;  Hatfield  v.  Montgomery,  2 
Porter,  58  ;  Bond  v.  Brown,  1  Harp.  Eq.  270;  Edwards  v.  Robeits,  7  Sm. 
&  M.  544;  Peacock  v.  Black,  Halst.  Eq.  535;  Steele  v.  Kinkle,  3  Ala. 
3.52;  Smith  v.  Clay,  Amb.  645;  Bond  v.  Hopkins,  1  Sch.  &  Lef.  413; 
Hovenden  v.  Annesley,  2  Sch.  &  Lef.  630-640;  Stackhouse  v.  Barnston, 
10  Ves.  466;  Ex  parte  Dewdney,  15  Ves.  496;  Kane  t^.  Bloodgood,  7  Johns. 
Ch.  93;  Dexter  w.  Arnold,  3  Sumn.  1.52;  Decouche  v.  Savetier,  3  Johns. 
Ch.  190;  Murray  v.  Coster,  20  Johns.  576;  Prevost  v.  Gratz,  6  Wheat. 
481;  Hughes  v.  Edwards,  9  Wheat.  489;  Elmendorf  v.  Taylor,  10  Wheat. 
108;  Miller  v.  Mclntire,  6  Pet.  61;  Sherwood  v.  Sutton,  5  Mason,  143; 
Williams  v.  First  Pres.  Soc,  1  Ohio  St.  478. 

3  Smith  V.  Clay,  3  Bro.  Ch.  039,  n.;  Hovenden  v.  Annesley,  2  Sch.  & 

298 


CHAP.  VI.]  STATUTE    OP    FRAUDS.  [§  229. 

had  acquiesced  for  twenty-five  years,^  and  twenty-one  years,^ 
and  in  another  case  the  lapse  of  eighteen  years  was  held 
to  be  a  bar.3  g^  ^  delay  of  thirty  years,*  of  thirty-eight  years,^ 
of  forty-six  years,*^  of  fifty  years^  of  twenty-seven  years,^  and 
of  seventeen  years,^  has  been  held  to  be  such  laches,  if  unex- 
plained, as  would  be  a  bar  to  a  bill  for  relief.  Under  the 
circumstances  of  other  cases,  a  delay  of  twelve  years,^*^  of 
eleven  years,^^  of  eighteen  years,  was  held  to  be  no  bar.^^  In 
Michoud  V.  Girod  the  law  was  elaborately  examined  and  stated 
by  Mr.  Justice  Wayne  as  follows,  "  that  within  what  time  a 
constructive  trust  will  be  barred  must  depend  upon  the  cir- 
cumstances of  the  case.^^     There  is  no  rule  in  equity  which 

Lef.  636;  Stackhouse  v.  Barnston,  10  Ves.  466;  Pryce  v.  Byrn,  5  Ves. 
681;  Ward  v.  Van  Bakkeleu,  1  Paige,  100;  Thompson  v.  Blair,  3  Murph. 
.593;  Farr  v.  Farr,  1  Hill,  Eq.  391;  Field  w.  Wilson,  6  B.  Mon.  479; 
Bruce  v.  Child,  4  Hawks,  372  ;  Perry  v.  Craig,  3  Miss.  525  ;  Ferris  v.  Hen- 
derson, 12  Pa.  St.  54 ;  Bank  of  U.  S.  v.  Biddle,  2  Pars.  Eq.  31 ;  Walker  v. 
Walker,  16  Serg.  &  R.  379;  McDowell  v.  Goldsmith,  2  Md.  Ch.  370;  Nor- 
ris's  App.,  71  Pa.  St.  124.  In  Paschall  v.  Hinderer,  28  Ohio  St.  568,  it  is 
said:  The  statute  does  not  apply  in  equity  to  bar  a  trust  except  in  three 
classes  of  cases :  first,  where  there  is  a  concurrent  remedy  at  law  to  which 
there  is  a  fixed  limitation ;  second,  where  there  is  an  open  denial  of  the 
trust,  with  notice  which  requires  action  by  the  cestui  que  trust  and  after- 
wards a  lapse  of  time  which  would  amount  to  a  bar  in  law ;  and  third, 
where  there  are  circumstances  shown  which  with  lapse  of  time  raise  a 
presumption  that  the  trust  has  been  extinguished. 

1  Blennerhassett  v.  Day,  2  B.  &  B.  118. 

2  Selsey  v.  Rhoades,  1  Bligh  (n.  s.),  1. 

2  Gregory  v.  Gregory,  Coop.  201 ;  Jac.  631 ;  Champion  v.  Rigby,  1  R. 
&  M.  539;  Roberts  v.  Tunstall,  4  Hare,  257. 

4  Harrod  v   Fountleroy,  3  J.  J.  Marsh.  548;  Phillips  v.  Belden,  2  Edw. 
Ch.  1 ;  Page  v.  Booth,  1  Rob.  Va.  161;  Bond  v.  Brown,  Harp.  Eq.  270. 

6  Powell  V.  Murray,  10  Paige,  256. 
^  Maxwell  v.  Kennedy,  8  How.  210. 
'  Anderson  v.  Barwell,  6  Grat.  405. 
8  Hayes  v.  Goode,  7  Leigh,  486. 

5  Baker  v.  Read,  18  Beav.  398;  Emerick  v.  Emerick,  3  Grant,  295. 

10  Butler  v.  Haskell,  4  Des.  651 ;  Newman  v.  Early,  3  Tenn.  Ch.  714. 
"  Rhinlander  v.  Barrow,  17  Johns.  Ch.  538;  Mulhallen  v.  Murum,  3 
Dr.  &  W.  317. 

12  Bell  V.  Webb,  2  Gill,  203;  Grisby  v.  IMousloy,  4  De  G.  &  J.  78. 

13  Boone  v.  Chiles,  10  Pet.  177;  Trafford  v.  Wilkinson,  3  Tenn.  Ch.  701. 

299 


§  2C0.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

excludes  the  consideration  of  circumstances,  and  in  a  case  of 
actual  fraud,  we  believe  no  case  can  be  found  in  the  books  in 
which  a  court  of  equity  has  refused  to  give  relief  within  the 
lifetime  of  either  of  the  parties  upon  whom  the  fraud  is  proved, 
or  within  thirty  years  after  it  has  been  discovered  or  becomes 
known  to  the  party  whose  rights  are  affected  by  it."  ^  If 
there  is  no  fraud  chargeable  on  any  party,  but  a  simple  mis- 
take or  accident  is  made  by  which  a  title  is  changed,  more 
diligence  is  required,  and  acquiescence  for  a  less  time  will  bar 
the  suffering  party  of  his  relief.  An  acquiescence  for  seventeen 
years,^  or  for  nineteen  years,^  has  been  held  to  be  fatal  to  an 
application  for  relief.  But  where  trustees  without  actual 
fraud  conveyed  to  themselves,  a  sleeping  on  their  rights  for 
five  years  after  knowing  of  the  transaction  was  held  not  to 
bar  the  cestuis,  the  court  intimating  that  where  no  conduct  of 
the  cestuis  indicated  acquiescence,  mere  delay  for  less  time 
than  twenty  years  would  not  affect  them.*  Where  there  are 
two  remedies,  pursuing  one  first  and  waiting  till  it  has  run 
its  course  before  making  trial  of  the  other  is  not  laches.^ 

§  230.  The  statute  of  limitations  is  not  necessarily  con- 
trolling, as  to  the  time  within  which  relief  is  to  be  sought, 
in  the  case  of  a  constructive  trust  by  reason  of  fraud.  A 
demand  may  be  stale,  and  not  entitled  to  relief  under  the 

1  Michoud  V.  Girod,  4  How.  561 ;  Trevelyan  v.  Charter,  11  CI.  &  Fin. 
714;  Pyrn  v.  Byrne,  5  Ves.  681 ;  Malony  v.  L'Estrange,  Beat.  406;  Car- 
penter V.  Canal  Co.,  35  Ohio  St.  307-  Lapse  of  time  is  no  bar  to  a  trust 
clearly  established  ;  and  in  cases  where  fraud  is  imputed  and  proved,  length 
of  time  ought  not,  upon  principles  of  eternal  justice,  to  be  admitted  to  re- 
pel relief.  On  the  contrary,  it  would  seem  that  the  length  of  time  during 
which  the  fraud  has  been  successful  is  rather  an  aggravation,  and  calls 
more  loudly  for  decisive  and  ample  relief.  Per  Story,  J.,  in  Prevost  v. 
Gratz,  6  Wheat.  481.  In  this  case  forty  years  and  the  death  of  all  the 
parties  was  held  sufficient  to  warrant  the  presumption  of  the  dis- 
charge and  extinguishment  of  a  trust,  proved  to  have  existed  by  strong 
circumstances. 

2  Hite  V.  Hite,  1  B.  Mon.  177;  Emerick  v.  Emerick,  3  Grant,  295. 

3  Bruce  v.  Child,  4  Hawks,  372. 

*  Morse  v.  Hill,  136  Mass.  60,  66,  &  cases  cited. 
s  Blake  v.  Traders'  Nat'l  Bk.  145  Mass.  13,  17. 
300 


CHAP.  VI.]  LACHES.  [§  230. 

circumstances  of  the  case,  although  much  less  than  the  time 
allowed  by  the  statute  of  limitations  has  elapsed ;  and  so  a 
party  may  be  entitled  to  relief  although  much  more  than  the 
statute  limit  has  gone  by.^  In  some  States,  however,  the 
statute  is  applied  to  constructive  trusts,  unless  they  are  con- 
cealed or  undiscovered.  In  such  States,  relief  must  be  sought 
within  six  years  if  it  is  sought  by  bill  in  equity  to  set  aside 
a  deed,  or  to  establish  a  trust.^  In  Pennsylvania,  the  limit  is 
five  years.^  In  other  States,  it  has  been  decided  in  analogy 
to  the  statute  which  bars  a  real  action  after  twenty  years, 
that  relief  must  be  sought  within  the  twenty  years  named  in 
the  statute.^  In  South  Carolina,  it  is  held  that  an  action  to 
set  aside  a  deed  as  fraudulent  is  equivalent  to  an  action  for 
deceit,  and  must  be  brought  within  the  limit  of  the  statute 
for  personal  actions.^  But  if  the  fraud  is  unknown  to  the 
injured  party,  or  is  concealed,  or  he  is  under  disability,  or 
out  of  the  country,  or  the  delay  is  caused  by  the  defendant,^ 
the  lapse  of  time  will  not  be  laches  which  bar  relief.  If  a 
party  has  knowledge  of  the  fraud,  a  want  of  evidence  will 

1  Mason  v.  Crosby,  1  Wood.  &  M.  342;  Piatt  v.  Vatier,  1  McLean,  146 ; 
9  Pet.  405 ;  Juzau  v.  Toulmin,  9  Ala.  662. 

2  Farnham  v.  Brooks,  9  Pick.  212;  Sears  v.  Shafer,  2  Seld.  268;  Wil- 
liamson V.  Field,  2  Sandf.  Ch.  534;  Pilcher  v.  Flinn,  30  Md.  202. 

8  Miller  v.  Franciscus,  40  Pa.  St.  335;  Rider  v.  Maul,  46  Pa.  St.  376; 
Ashurst,  App.  60  Pa.  St.  290. 

4  Ware  v.  Van  Blakkelen,  1  Paige,  100;  Walker  v.  Walker,  16  Serg. 
&  R.  379;  Ferris  v.  Henderson,  12  Pa.  St.  54 ;  Bank  of  U.  S.  v.  Biddle,  2 
Pars.  Eq.  31 ;  Thompson  v.  Blair,  3  Murph.  593  ;  Farr  v.  Farr,  1  Hill,  Eq. 
391  ;  Perry  y.  Craig,  3  Miss.  525  ;  Field  v.  Wilson,  6  B.  Mon.  479  ;  Bruce 
V.  Child,  4  Hawks,  372;  McDowel  v.  Goldsmith,  2  Md.  Ch.  370. 

5  Parkam  v.  McCravy,  6  Rich.  Eq.  143;  McDonald  v.  May,  1  Rich. 
Eq.  91;  Bradley  v.  McBride,  Rich.  Eq.  Ca.  202,  is  overruled. 

«  Sears  v.  Shafer,  2  Seld.  268;  Richardson  v.  Jones,  3  G.  &  J.  163; 
Doggett  V.  Emerson,  3  Story,  700;  Callender  v.  Calgrove,  17  Conn.  1; 
Phalen  v.  Clarke,  19  Conn.  421;  Hallett  v.  Collins.  10  How.  174:  Rider  v. 
Bickerton,3  Swanst.  81,  n.;  Blennerhassett  r  Diy,  2B.  &B.  118;  Trevelyan 
V.  Charter,  11  CI.  &  Fin.  714;  Bowen  v.  Evans,  2  H.  L.  Ca.  257;  Warner  v. 
Daniels,  1  W.  &  M.  Ill;  Murray  v.  Palmer,  2  Sch.  &  Lef.  487;  Aylewood 
V.  Kearney,  2  B.  &  B.  263;  Pickett  v.  Loggan,  14  Ves.  215;  Purcell  v. 
McNamara,  Id.  91;  Ferris  r.  Henderson,  12  Pa.  St.  49;  Michoud  u  Girod. 
4  How.  561  ;  Henry  County  v.  Winnebago,  &c  ,  52  111.  299. 

301 


§  230.]  CONSTRUCTIVE   TRUSTS.  [CHAP.  VI. 

not  excuse  his  delay,^  nor  will  poverty  and  an  inability  to 
prosecute  the  action.^  If  there  has  been  great  delay,  courts 
will  require  very  clear  evidence  to  impeach  a  transaction  as 
fraudulent,  and  to  convert  the  fraudulent  party  into  a  trustee.^ 
So,  if  a  great  length  of  time  has  elapsed,  courts  will  some- 
times grant  the  relief  prayed  for  by  setting  aside  the  convey- 
ance, but  will  decree  an  account  for  only  six  years/  or  from 
the  time  of  filing  tlie  bill,^  and  without  costs.^ 

1  Parkam  v.  McCravy,  6  Rich.  Eq.  114. 

2  Roberts  v.  Tunstall,  4  Hare,  357;  Maxwell  v.  Kennedy,  8  How.  210; 
Locke  V.  Armstrong,  2  Dev.  &  Bat.  147;  Perry  v.  Craig,  3  Miss.  516. 

3  Chalmers  v.  Bradley,  1  J.  &  W.  59  ;  Powell  v.  Murray,  10  Paige, 
256  ;  Bowen  v.  Evans,  2  H.  L.  Ca.  257  ;  Westbrook  v.  Harwell,  2  McCord, 
Eq.  112;  Phillips  v.  Belden,  2  Edw.  Ch.  1;  Jennings  v.  Broughton,  3  De 
G.,  M.  &  G.  126  ;  Chandos  v.  Brownlow,  2  Ridg.  P.  C.  397  ;  Montgomery 
V.  Hobson,  Meigs,  437  ;  Page  v.  Booth,  1  Rob.  161. 

4  Pearce  v.  Newlyn,  3  Madd.  189. 

s  Pickett  V.  Loggan,  14  Ves.  215 ;  Malony  v.  L'Estrange,  Beatt.  406 ; 
Mulhallan  v.  Murum,  3  Dr.  &  W.  317. 

^  Pearce  v.  Newlyn,  3  Madd.  189 ;  Attorney-General  v,  Dudley,  Coop, 
146. 


302 


CHAP.  VII. 1      TRUSTS   BY   EQUITABLE    CONSTRUCTION.  [§  231. 


CHAPTER   VII. 

TRUSTS   THAT   ARISE    BY   EQUITABLE    CONSTRUCTION    IN   THE 
ABSENCE    OF    FRAUD. 

§  231.    Trust  by  equitable  construction.     Illustration. 

§  232.   Vendor's  lien  for  the  purchase-money  of  this  description.     States  in  which 
it  exists. 

§  233.  This  lien  does  not  contravene  the  statute  of  frauds. 

§  234.  The  nature  of  the  interest  of  the  vendor  under  this  lien. 

§§  235-237.     When  the  lien  exists  and  when  not. 
§§  238, 239.     The  parties  between  whom  the  lien  exists. 

§  240.   Trust  by  construction  where  a  conveyance  is  made  that  cannot  operate  at  law. 

§  241.    Constructive  trust  where  trust  property  is  transferred  by  gift  from  the  trustee. 

§  242.   Constructive  trust  where  a  corporation  distributes  its  capital  stock  without 
paying  its  debts. 

§  243.   A  person  holding  the  legal  title  as  security  is  a  constructive  trustee. 

§  244.   Executor  indebted  to  the  testator's  estate  is  a  constructive  trustee. 

§  245.   A  person  may  become  a  trustee  de  son  tort  by  construction. 

§  246.   An  agent  may  become  a  constructive  trustee. 

§  247.   A  person  holding  deeds  or  papers  or  property  belonging  to  another  may  be 
a  constructive  trustee. 

§246«.  Other  equitable  trusts.     See  247  a. 

§  231.  It  frequently  happens  that  courts  of  equity  con- 
strue a  trust  to  arise  fi-om  the  contracts  and  dealings  of  par- 
ties, although  a  trust  is  not  within  their  contemplation,  and 
there  is  no  fraud,  actual  or  constructive.  In  this  respect, 
courts  of  equity  proceed  in  a  maimer  and  upon  principles  en- 
tirely unknown  to  courts  of  law.  Thus,  if  the  intention  of 
the  testator  cannot  be  carried  out  without  appointing  a  trus- 
tee, that  will  be  done.^  So,  if  parties  enter  into  a  valid  con- 
tract for  the  sale  and  conveyance  of  lands,  and  the  vendor 
neglects  or  declines  to  convey,  courts  of  law  can  only  give 
the  vendee  an  action  for  damages  for  a  breach  of  the  contract, 
but  the  legal  title  to  the  property  will  not  be  affected ;  it  will 
still  remain  in  the  vendor.     A  court  of  equity,  however,  looks 

1  Quigley  v.  Gridley,  132  Mass.  39,  40. 

303 


§  231.]  TRUSTS   BY   EQUITABLE   CONSTRUCTION.       [CHAP.  VTI. 

upon  that  as  already  done,  which  was  agreed  to  be  done.^ 
From  the  date  of  the  contract  it  looks  upon  the  beneficial  in- 
terest as  in  the  vendee,  and  the  legal  title  only  as  in  the 
vendor.  By  construction  the  vendor  holds  the  legal  title  in 
trust  for  the  vendee.'^  Equity  proceeds,  in  personam,  against 
the  vendor  and  makes  him  a  trustee,  and  then  orders  him  to 
execute  the  trust  by  conveying  the  legal  title  to  the  person 
to  whom  he  has  agreed  to  convey  it.  The  purchaser  is  in  like 
manner  a  trustee  of  the  purchase-money,  and  the  court  will 
order  him  to  pay  it  over,  and  receive  a  conveyance  of  the  legal 
title  to  the  land.^  And  a  fortiori,  if  the  purchaser  has  paid 
the  purchase-money  the  vendor  becomes  a  mere  trustee  of 
the  legal  title  for  the  purchaser;*  so,  if  the  purchaser  has 
paid  part  of  the  purchase-money,  the  vendor  becomes  a  trus- 
tee to  the  extent  of  the  money  paid.^  If  the  vendor  does  not 
own  the  land,  or  some  part  of  that  which  he  agrees  to  convey, 
and  afterwards  obtains  the  title,  he  will  immediately  become 
a  trustee  for  the  purchaser.^  This  equity  will  not  be  affected 
by  the  death  or  bankruptcy  of  either  party.  If  the  vendor 
dies  before  he  has  conveyed  the  land,  the  legal  title  will  de- 
scend to  his  heirs  subject  to  the  trust ;  and  they  or  his  legal 
representatives  will  be  ordered  to  execute  the  trust.'     But  the 

1  Fonbl.  Eq.  Tr.  B.  1,  c.  6,  §  8. 

2  Wall  V.  Bright,  IJ.  &  W.  500;  Green  ;•.  Smith,  1  Atk.  572;  Davie  v. 
Beardsham,  1  Ch.  Ca.  39;  Atcherley  i'.  Vernon.  10  Mod.  518;  McKay  v. 
Carrington,  1  McLean,  50;  Crawford  v.  Bertholf,  Saxt.  458;  Ten  Eyck 
r.  Simpson,  1  Sandf.  Ch.  244;  Kerr  v.  Day,  14  Pa.  St.  112;  Moore  y. 
Burrows,  .34  Barb.  173;  Adams  v.  Green,  Id.  176;  Wickman  v.  Robinson, 
14  Wis.  493;  Conway  v.  Kinsworthy,  21  Ark.  9;  Dana  r.  Petersham,  107 
Mass.  598;  Currie  v.  White,  45  N.  Y.  822;  Reed  v.  Lukens,  44  Pa.  St. 
200;  Lamb  v.  Davenport,  1  Sawyer,  609  ;  Potter  v.  Jacobs,  111  Mass.  32. 

3  Green  v.  Smith,  1  Atk.  572;  Pollexfen  v.  Moore,  3  Atk.  272;  Dexter 
r.  Stewart,  7  Johns.  Ch.  52. 

*  Waddington  v.  Banks,  1  Brock.  97;  Fenno  v.  Sayre,  3  Ala.  458;  Brown 
V.  East,  5  Mon.  415;  Payne  v.  Atterbuiy,  Harring.  Ch.  414;  Neeson  r. 
Clarkson,  4  Hare,  97. 

6  Wythes  v.  Lee,  3  Drew.  396;  Westmacott  v.  Robins,  4  De  G.,  F  &  J. 
390. 

6  Tyson  v.  Passmore,  2  Barr.  122  ;  McCall  v.  Coover,  4  Watts  &  S.  151. 

^  Paul  V.  Wilkins,  Toth.  106;  Barker  v.  Hill,  2  Ch.  R.  113;  Winged  v. 
304 


CHAP.  VII.]  VENDOR'S   LIEN.  TS  £32 

lien  or  trust  will  not  exist  where  the  purchaser  by  his  own 
fault  abandons  the  contract,^  or  where  the  contract  is  for  any 
cause  illegal.'^  If  the  purchaser  abandons  the  contract  be- 
cause the  vendor  cannot  fulfil  it  as  agreed  upon,  as  if  it  is  to 
give  a  good  title,  the  trust  or  lien  will  not  continue.^  Wher- 
ever one  wrongfully  obtains  the  legal  title  to  land  which  in 
equity  and  good  conscience  belongs  to  another,  equity  will 
raise  a  constructive  trust.^ 

§  232.  Similar  to  this  is  the  constructive  lien  or  trust  in 
favor  of  a  vendor  for  his  unpaid  purchase-money ;  for  the 
vendor  of  land  has  a  lien  on  the  land  for  the  amount  of  the 
purchase-money,  not  only  against  the  vendee  himself  and  his 
heirs  and  other  privies  in  estate,  but  also  against  all  subse- 
quent purchasers  having  notice  that  the  purchase-money 
remains  unpaid.  To  the  extent  of  the  lien,  the  vendee  be- 
comes a  trustee  for  the  vendor ;  and  the  vendee's  heirs,  and 
all  other  persons  claiming  under  him  or  them  with  notice, 
are  construed  by  courts  of  equity  to  be  trustees.  This  doc- 
trine is  well  established  in  the  jurisprudence  of  England,^ 
and  it  has  been  recognized,  and  acted  upon,  in  many  of  the 
United  States.*^     The  principle  upon  which  the  lien  depends 

Lefebury,  2  Eq.  Ca.  Ab.  32,  pr.  43;  Orlebar  v.  Fletcher,  1  P.  Wms.  737; 
Bowles  V.  Bowles,  6  Ves.  95,  n. ;  Whitworth  v.  Davis,  V.  &  B.  545;  Tiernan 
V.  Roland,  15  Pa  St.  429;  Rutherford  v.  Green,  2  Tred.  Eq.  121;  Jacobs 
V.  Lake,  Id.  286;  Newton  v.  Swazey,  8  N.  H.  9;  Glaze  w.  Drayton,  1  Dev. 
109.  In  Massachusetts,  the  Probate  Court  or  the  Supreme  Judicial  Court 
may  authorize  the  executor  or  administrator,  or  the  guardian  of  an  insane 
person,  to  convey  in  such  cases.     Public  Stat.  1882. 

1  Dinn  v.  Grant,  5  De  G.  &  Sm.  451. 

2  Ewing  V.  Osbaldiston,  2  My.  &  Cr.  88. 

3  Wythes  v.  Lee,  3  Drew.  396. 

"  Lakin  v.  S.  B.  M.  Co.,  11  Sawy.  (U.  S  )  231. 

5  See  Mackreth  v.  Symmons,  15  Ves.  329,  where  Lord  Eldon  cited  and 
commented  upon  all  the  cases  previous  to  that  time.  See  s.  c.  1  Lead. 
Ca.  Eq.  336,  where  the  later  English  cases  are  quoted  and  also  the  Ameri- 
can cases.  Lemon  v.  Whitely,  4  Rus.  423  ;  Chapman  v.  Tanner,  1  Vern. 
267;  Blackburn  r.  Gregson,  1  Bro.  Ch.  420;  Burgess  v.  Wheat,  1  Eden, 
211;  1  W.  Black.  1.50. 

*  In  Maine  the  doctrine  is  entirely  rejected  as  inconsistent  with  the 
VOL.  1.-20  305 


§  232.]  TRUSTS    BY   EQUITABLE    CONSTRUCTION.      [CHAP.  VIT. 

is  this :  that  a  person  who  has  obtained  the  estate  of  another 
ought  not,  in  conscience,  to  keep  it,  and  not  pay  the  consid- 

registry  laws  and  policy  of  the  State:  Philbrook  v.  Delano,  29  Me.  415. 
In  New  Hampshire  the  court  has  left  it  undecided:  Arlin  v.  Brown.  44 
N.  H.  102,  and  see  Buntin  v.  French,  16  N.  H.  592.  In  Vermont  the 
doctrine  was  established  in  an  able  judgment  by  Ch.  J.  Redfield:  Manly 
r.  Slason,  21  Vt.  271,  but  abolished  by  Stat.  1851.  In  jMassachusetts  it 
is  rejected:  Ahrend  v.  Odiorne,  118  Mass.  261.  In  Connecticut  it  is  un- 
decided :  Atwood  V.  Vincent,  17  Conn.  575.  See  Watson  v.  Wells,  5  Conn. 
468;  Dean  v.  Dean,  6  Conn.  285;  Meigs  v.  Dimock,  Id.  458:  Chapman  v. 
Beardsley,  31  Conn.  115.  In  Rhode  Island  it  is  recognized:  Kent,  Adm'r, 
V.  Gerhard  et  ux.  12  R.  I.  92.  In  New  York  it  is  well  established:  Staf- 
ford V.  Van  Renselaer,  9  Cow.  316;  Garson  v.  Green,  1  Johns  Ch.  308; 
White  r.  Williams,  1  Paige,  Ch.  502;  Fish  v.  Rowland,  Id.  20;  Warner  v. 
Van  Alstyne,  3  id.  513  ;  Shirly  c.  Sugar  Ref.,  2  Edw.  Ch.  505;  Dubois  v. 
Hall,  43  Barb.  26;  Warren  v.  Fenn,  28  id.  333;  Champion  v.  Brown,  6 
Johns.  402.  In  New  Jersey,  also:  Vandoren  v.  Todd,  2  Green,  Ch.  397; 
Brinkerhoff  v.  Vansciven,  3  Green.  Ch.  251 ;  Herbert  v.  Scofield,  1  Stockt. 
Ch.  492.  In  Pennsylvania  the  doctrine  is  rejected,  though  there  may  be 
such  a  conditional  title  conveyed,  as  will  give  the  vendor  a  preference  for  the 
purchase-money  over  all  others  claiming  under  the  vendee:  Irvine  v.  Camp- 
bell, 6  Binn.  118;  Stouifer  v.  Coleman,  1  Yeates,  393  ;  Kaiiffelt  r.  Bower,  7 
Serg.  &  R.  64 ;  Bear  v.  Whisler,  7  Watts,  147 ;  Semple  v.  Burd,  7  Serg.  &  R. 
286  ;  Zentmyer  v.  Miltower,  5  Pa.  St.  403;  Stephen's  App  ,  38  Pa.  St.  9; 
Springer  v.  Walters,  34  Pa.  St.  328 :  Hepburn  v.  Snyder,  3  Pa.  St.  72 ;  Me- 
gargel  v.  Saul,  3  Whar.  19;  Cook  v.  Trimble,  9  AYatts,  15;  Heist  v.  Baker, 
49  Pa.  St  9  ;  Straus's  App.,  Id.  353.  In  Delaware  the  point  is  undecided: 
Budd  V.  Basti.  1  Harr.  69.  In  Maryland  it  is  well  established:  White  v. 
Casanave,  1  Har.  &  J  106;  Ghiselin  v  Ferguson,  4  Har.  &  J.  522;  Pratt  v. 
Van  Wyck,  6  Gill  &  J.  495;  Magruder  v.  Peter,  11  Gill  &  J.  217 ;  Repp 
r.  Repp,  12  Gill  &  J.  341 ;  Moreton  v.  Harrison,  1  Bland,  Ch.  491 ;  Carr  v. 
Hobbs,  11  ]Md.  285;  Hummer  v.  Schott,  21  Md.  307;  Hall  v.  Jones,  Id. 
439;  Bratt  v.  Bratt,  Id.  578.  In  Virginia  it  was  long  acted  upon:  Graves 
V  McCall,  1  Call,  414;  Handley  v.  Lyons,  5  Munf.  342;  Duvall  v.  Bibb, 
4  Hen.  &  M.  113;  Hatcher?;.  Hatcher,  1  Rand.  .53;  Redford  v.  Gibson, 
12  Leigh,  332.  But  it  is  now  abolished  by  the  code:  Yancy  r.  Manck, 
15  Grat.  300;  Hempfield  R.  R.  Co.  v.  Thornbury,  1  West  Va.  261.  In 
North  Carolina,  after  being  acted  upon  for  some  time,  it  was  overruled: 
Cameron  v.  INIason,  7  Ired.  Eq.  180;  Gabee  v.  Sneed,  1  Dev.  &  B.  333; 
Wamble  r.  Battle,  3  Ired.  Eq.  182;  Henderson  v.  Burton,  Id.  259.  In 
South  Carolina  it  was  never  acted  upon:  Wragg  v.  Comptroller  Gen.,  2 
Des.  509.  In  Georgia  it  is  acted  upon:  Marine  Fire  Ins.  Co.  v.  Early, 
Charl.  279;  Hampden  v.  Miller,  Dud.  120;  iNIounce  v.  Byars,  16  Ga.  469; 
Chance  v.  McWharter,  26  Ga.  315;  Stile  v.  Griffin,  27  Ga.  504;  Mims  v. 
306 


CHAP.  VII.]  VENDOR'S   LIEN.  •  [§  232. 

eration  money  in  full  ;  and  a  third  person,  who  receives  the 
estate  with  full  knowledge  tliat  it  has  not  been  paid  for, 
ought  not,  as  a  matter  of  equity,  to  be  allowed  to  keep  it 

Lockett,  23  Ga.  237  ;  Mims  v.  Macoti  and  Western  Railroad,  3  Kelly,  333. 
Also  in  Florida:  Woods  v.  Bailey,  3  Fla.  41.  And  so  in  Alabama: 
Burns  v.  Taylor,  23  Ala.  255;  Haley  v.  Bennett,  5  Porter,  452;  Roper  v. 
McCook,  7  Ala.  318;  Griffin  v.  Cainack,  30  Ala.  6.95.  So  in  Mississippi: 
Trotter  v.  Erwin,  27  Mi.ss.  772;  Stewart  r.  Ives,  1  Sm.  &  M.  197;  Tanner 
V.  Hicks,  4  Sm.  &  M.  294;  Upshaw  v.  Hargrave,  6  Sm.  &M.  286;  Dunlop 
V.  Burnett,  5  Sm.  &  M.  702;  Servis  v.  Beatty,  32  Miss.  52.  Jt  is  estab- 
lished in  Texas:  Pinchain  r.  Collard,  13  Tex.  333;  Wheeler  v.  Lane,  21 
Tex.  583;  McAlpin  v.  Burnett,  23  Tex.  619.  So  in  Arkansas:  English  v. 
RiLssell,  Hemp  35;  Scott  v.  Orbinson,  2  Ark.  202;  Shall  v.  Biscoe,  18  Ark. 
142.  So  in  Missouri:  Marsh  v.  Turner,  4  Mo.  53;  McKnight  v.  Brady,  2 
Mo.  110  ;  Davis  v.  Lamb,  30  Mo.  441 ;  Bledsoe  v.  Games,  Id.  448;  Delassus 
V.  Boston,  19  Mo.  425.  So  in  Tennessee:  Brown  v.  Vanlier,  7  Humph. 
239;  Eskridge  v.  McClure,  2  Yerg.  84;  Marshall  v.  Christmas,  3  Humph. 
GIG  ;  Campbell  v.  Baldwin,  2  Humph.  248;  Uzzell  o.  Mack,  4  Humph.  319  ; 
Medley  v.  Davis,  5  Humph.  387;  Norvell  v.  Johnson,  Id.  489;  Taylor  v. 
Hunter,  Id.  569.  So  in  Kentucky:  Mair  v.  Cross,  10  B.  Mon.  277  ;  Fowler 
V.  Rust,  2  A.  K.  Marsh.  294;  Taylor  v.  Alloway,  2  Litt.  216;  Mosely  v. 
Garrett,  1  J.  J.  Marsh.  212;  Richardson  v.  Baker,  5  J.  J.  Marsh.  323 ;  Cox 
V.  Fenwick,  3  Bibb,  183.  So  in  Ohio:  Williams  (7.  Roberts,  5  Ohio,  35; 
Tiernan  v.  Bean,  2  Ham.  383  ;  Magham  v.  Coombs,  14  Ohio,  428;  Neil  v. 
Kinney,  11  Ohio  St.  58.  So  in  Indiana:  McCarty  v.  Pruet,  4  Ind  46; 
Lagow  V.  Badollet,  1  Blackf.  416;  Evans  v.  Goodlett,  Id.  246  ;  Merritt  v. 
Wiles,  18  Ind.  171;  Cox  v.  Wood,  20  Ind.  54.  So  in  Illinois:  Trustees 
V.  Wright,  11  111.  603.  So  in  Michigan:  Sears  v.  Smith,  2  Mich.  243; 
Carroll  v.  Van  Renselaer,  Harring.  Ch.  225.  Also  in  Iowa:  Pierson  v. 
David,  1  Iowa,  23;  Rakestraw  i;.  Hamilton,  14  Iowa,  147;  Patterson?'. 
Linder,  Id.  414;  Tupple  y.  Viers,  Id.  515;  Grapengether  i?.  Fejervary  9 
Iowa,  163;  Hays  v.  llorine,  12  Iowa,  61.  So  in  Wisconsin:  Toby  y.  Mc- 
Allister,  9  Wis.  463.  Also  in  Minnesota:  Daughaday  v.  Payne,  6  Minn. 
443.  In  Kansas  there  is  no  lien :  Simpson  v.  Munder,  3  Kansas,  172.  And 
so  in  Nebraska:  Edminster  i\  Higgins,  6  Neb.  265.  The  lien  exi.sts  in 
California:  Truebody  v.  Jacobson,  2  Cal.  269;  Taylor  jj.  McKinney,  20 
Cal.  618;  Baum  v.  Grigsby,  21  Cal.  172;  Sparks  v.  Hess,  15  Cal.  186; 
Walker  v.  Sedgwick,  8  Cal.  398;  Cahoon  r.  Robinson,  6  Cal.  225;  Salmon 
V.  Hoffman,  2  Cal.  138  ;  Burtt  v.  Wilson,  28  Cal  632.  Tlie  same  doctrine 
is  held  in  the  courts  of  thn  United  States:  Chilton  v.  Braiden,  2  Black, 
458;  Gilman  v.  Brown.  1  Mason,  191  ;  4  Wheat.  255;  Bayley  w.  Green- 
leaf,  7  Wheat.  46;  Bush  v.  Marshall.  6  How.  281;  Gnlloway  ?'."  Finley,  12 
Pet.  264;  McLearn  v.  McLellan,  10  Pet  010;  Cole  v.  Scott,  2  Wash. 
111. 

807 


§233.]  TRUSTS    BY    EQUITABLE    CONSTRUCTION.       [CHAP.  VII. 

without  paying  for  it.^  It  will  at  once  be  seen,  that,  as  be- 
tween the  parties,  this  lien  is  founded  in  natural  justice.^ 
The  civil  law  gave  a  lien  on  both  real  and  personal  prop- 
erty to  the  vendor  for  the  purchase-money,  and  the  principle 
was  early  introduced  into  English  equity,  as  to  real  estate.^ 
Courts  administer  the  equity  by  converting  the  purchaser 
into  a  trustee.^  They,  in  effect,  say,  that  if  one  conveys  his 
land  and  takes  no  security  for  the  purchase-money,  the  pur- 
chaser shall  be  a  trustee  of  the  land  for  the  vendor  until  it 
is  paid.^ 

§  233.  It  has  been  objected  that  the  creation  of  this  lien  or 
trust  by  courts  of  equity  is  a  repeal  of  the  statute  of  frauds. 
It  is  answered,  that  the  raising  of  such  a  trust  is  no  more  in 
contravention  of  the  statute  than  the  creation  of  any  other 
resulting  or  constructive  trust  by  operation  of  law  upon  the 
acts  and  contracts  of  parties,  where  they  do  not  contemplate 
or  intend  a  trust.^  It  is  further  objected,  in  the  United 
States,  that  the  raising  of  such  trusts  is  contrary  to  the  policy 
of  the  registry  laws  which  require  all  deeds  and  liens  to  be 
matter  of  record."  But,  as  between  the  parties,  the  raising 
of  a  trust  to  secure  the  purchase-money  is  no  more  against 
the  policy  of  the  registry  laws  than  is  the  raising  of  a  result- 
ing trust  to  secure  the  actual  purchaser,  where  the  deed  is 
taken  in  the  name  of  another,  or  the  raising  of  a  constructive 
trust  where  one  man  has  defrauded  another  of  his  title.  In 
either  case  there  is  a  secret  trust  that  does  not  appear  upon 
the  records  of  the  registry.     So,  as  against  third  persons  who 

1  Hughes  V.  Kearney,  1  Sch  &  Lef.  135;  Chilton  v.  Braiden,  2  Black, 
458. 

2  Inst.  Lib.  2,  tit.  1,  §  41 ;  Blackburn  i:  Gregson,  1  Cox,  100;  Chap- 
man V.  Tanner,  1  Vern.  267. 

8  Mackreth  v.  Symmons,  15  Ves.  337 ;  Dig.  Lib.  IS,  tit.  1,  c.  19,  22, 
53;  Domat,  B.  3.  tit.  1,  §  5,  art.  4. 

*  Ibid.  ;  Blackburn  v.  Gregson,  1  Bro.  Ch.  420;  Walker,  Am.  Law, 
315. 

6  Ibid. 

*  Mackreth  v.  Symmons,  15  Yes.  329;  Manly  v.  Slason,  15  Vt.  271. 
'  Philbrook  v.  Delano,  29  Me.  415. 

308 


CHAP.  VII,]  vendor's  lien.  [§  234. 

take  the  land  with  notice  that  the  purchase-money  is  unpaid, 
the  policy  of  the  registry  laws  applies  in  the  same  manner 
that  it  applies  to  other  unrecorded  deeds  or  liens.^  Thus,  if 
a  second  purchaser  or  mortgagee  has  notice  of  a  prior  sale  or 
mortgage  for  a  valuable  consideration,  he  cannot,  by  putting 
his  deed  or  mortgage  first  on  record,  deprive  the  prior  pur- 
chaser or  mortgagee  of  his  title  or  security.^  It  is,  however, 
true  that  many  courts  have  looked  upon  this  trust  with  dis- 
favor, although  they  have  recognized  its  existence,^  and  some 
States  have  formally  abolished  it  by  statute.^  While  other 
courts  deem  it  highly  equitable,  and  eminently  consistent 
with  the  most  perfect  ideas  of  moral  justice.^ 

§  234.  In  most  cases  the  cestui  que  trust  has  an  equitable 
estate  in  the  land  to  which  his  trust  attaches,  an  estate  which 
he  may  sell,  assign,  or  devise ;  but  a  vendor  having  only  a 
lien  for  his  purchase-money,  has  no  estate  in  the  land.  It  is 
neither  jus  in  re  nor  jus  ad  ran.  It  is  the  mere  possibility  of 
a  right,  until  it  is  established  by  a  final  decree  of  a  court  in 
each  case.^  It  is  not  a  direct  trust  in  the  land  itself,  but  a 
collateral  trust  for  the  security  of  the  debt.  It  is  in  fact 
a  remedy  for  a  debt,  and  not  a  right  of  property.  It  follows, 
that  the  remedy  can  be  enforced  only  so  long  as  the  debt  can 
be  enforced ;  that  where  an  action  for  the  purchase-money  is 
gone,  the  right  to  enforce  the  lien,  or  the  lien  itself,  is  gone 
also.  This  lien  or  trust  continues  so  long  as  the  purchase- 
money  remains  unpaid,  or  so  long  as  an  action  can  be  main- 
tained for  its  collection.  If  the  action  is  barred  by  the  statute 
of  limitations,  the  remedy  to  enforce  the  lien  is  gone  also.'^ 

1  Manly  v.  S!ason,  21  Vt.  271. 

2  Hayley  v.  Greeiileaf ,  7  Wheat.  51 ;  Conover  v.  Warren,  1  Gil.  502 ; 
Brawley  v.  Catron,  8  Leigh,  527;  Moore  v.  Halcombe,  3  Leigh,  600. 

3  Vermont  and  Virginia,  ut  sup. 
*  Ibid. 

6  Manly  v.  Slason,  21  Vt.  278. 

6  Gilman  v.  Brown,  1  Mason,  21;  1  Lead.  Ca.  in  Eq.  272-275;  Wil- 
liams V.  Young,  17  Cal.  40:^;  21  Cal.  227. 

''  Borst  V.  Corey,  15  N.  Y.  505;  Sheratz  v.  Nicodemus,  7  Yerg.  9  ;  Trot- 
ter V.  Erwin,  27  Miss.  772;  Addaras  v.  Hefferman,  9  Watts,  5!0;  Alex- 

309 


§  235.]  TRUSTS   BY    EQUITABLE   CONSTRUCTION.       [CHAP.  VII. 

In  this  respect  the  vendor's  lien  differs  from  a  mortgaji:e, 
wliich  may  be  enforced  against  the  land  after  all  right  to  en- 
force the  debt  against  the  mortgagor  is  barred  by  the  statute 
of  limitations,  or  by  his  discharge  in  bankruptcy.  If  a  cestui 
que  trust  conveys  his  equitable  estate  in  land,  he  will  have 
the  same  lien  upon  it  for  the  purchase-money  as  in  the  case 
of  a  legal  estate.^ 

§  235,  The  lien  exists,  notwithstanding  the  deed  recites  ^ 
or  acknowledges^  that  the  consideration  is  paid,  and  notwith- 
standing a  receipt  of  the  payment  is  indorsed  upon  the  back 
of  the  deed,*  if  in  fact  it  is  not  paid.  And  if  the  considera- 
tion is  not  to  be  paid  until  after  the  death  of  the  grantor,  and 
then  only  upon  a  contingency,  as  if  no  claim  for  dower  is 
made  in  the  mean  time,  the  lien  will  arise ;  ^  but  if  the  consid- 
eration of  the  sale  is  something  other  than  money,  as  if  the 
vendor  makes  the  sale  for  the  consideration  of  his  future  sup- 
port, no  lien  will  arise  ;^  nor  if  in  consideration  that  his  debts 
are  paid  ;  ^  nor  if  the  amount  of  the  consideration  is  uncertain 
and  unliquidated.^  Nor  if  it  appears  that  the  consideration 
is  that  the  vendee  shall  enter  into  covenants  to  do  certain 

ander  v.  i\lcMiirray,  8  Watts,  504.  But  in  INIaryland  it  was  held  to  be  a 
direct  trust  and  property  in  the  land,  like  a  mortgage,  which  could  be 
enforced  after  the  personal  obligation  of  the  vendee  was  gone.  ISloreton 
V.  Harrison,  1  Bland,  491;  Lingan  v.  Henderson,  Id.  236.  And  see  Relfe 
V.  Relfe,  34  Ala.  .500. 

^  Tglehart  v.  Arraiger,  1  Bland,  519;  Galloway  v.  Hamilton,  1  Dana, 
576;  Lignon  v.  Alexander,  7  J.  J.  Marsh.  288;  Stewart  v.  Hatton,  3 
J.  J.  j\larsh.  178.  But  see  Bayley  v.  Greenleaf,  7  Wheat.  46 ;  Schnebly 
V.  Ragan,  7  Gill  &  J.  120. 

'^  Thornton  v.  Knox,  6  B.  Mon.  74;  Mackreth  r.  Symmons,  15  Ves. 
337;  Plughes  r.  Kearney,  1  Sch.  &  Lef.  135;  Winter  v.  Anson,  3  Russ. 
488 ;  1  Sim.  &  S.  434  ;  Saunders  v.  Leslie,  2  B.  &  B.  514. 

3  Gilman  v.  Brown,  1  Mason,  C.  C.  214 ;  Sheratz  v.  Nicoderaus,  7  Yerg. 
9;  Ewbank  v.  Poston,  5  Mon.  287;  Redford  v.  Gibson,  12  Leigh,  344; 
Tribble  v.  Oldham,  5  J.  J.  Marsh.  144. 

4  Ibid. 

5  Redford  v.  Catron,  8  Lpigh,  528. 

6  Arlin  v.  Brown,  44  N.  H.  105;  McCandli.sh  v.  Keen,  13  Grat.  615; 
Brawley  v.  Catron,  8  Leigh,  528;  McKillip  v.  McKillip,  8  Barb.  552. 

^  Chapman  v.  Beardley,  3  Conn.  115.  ®  Ibid. 

310 


CHAP.  VII.]  vendor's  lien.  [§  236. 

things.^  If  a  note  or  bond  is  taken  for  the  consideration,  and 
includes  anything  other  than  the  price  of  the  land  sold,  the 
lien  will  not  attach.^ 

§  236.  Where  a  vendor  takes  security  for  the  purchase- 
money,  it  is  often  a  difficult  question  to  determine  whether 
he  has  thereby  abandoned  or  waived  his  lien.  Much  of  the 
litigation  upon  vendor's  liens  has  arisen  over  this  question,  — 
whether  the  lien  was  abandoned  or  not  by  the  parties.  Of 
course,  it  is  a  pure  question  of  fact  or  intention.  By  the 
civil  law,  the  taking  of  any  kind  of  security  was  an  abandon- 
ment of  the  lien  upon  the  property ;  this  rule  has  not  pre- 
vailed in  England.  The  rule  in  England  is,  that  prima  facie 
the  vendor  has  a  lien  for  the  purchase-money  :  the  presump- 
tion in  favor  of  this  lien  continues  until  it  is  displaced  by 
satisfactory  evidence  that  the  lien  has  been  abandoned  or  ex- 
tinguished. The  burden  is  on  the  vendee  to  repel  the  pre- 
sumption. The  taking  of  security  by  the  vendor  is  evidence 
upon  that  question,  more  or  less  satisfactory  according  to  the 
nature  of  the  security  taken  and  the  circumstances  under 
which  it  is  takcn.^  It  has  been  held  that  the  taking  of  a 
mortgage  on  another  estate  w^as  not  conclusive  evidence  that 
the  lien  was  abandoned  ;  *  and  so,  bills  or  notes  indorsed  by 
third  persons,  or  bonds  with  a  surety,  are  not  necessarily 
conclusive  evidence  that  the  vendor  in  taking  them  waives 
his  lien.^     It  may  be,  in  such  cases,  that  the  vendor  accepted 

^  Buckland  v.  Pocknell,  13  Sim.  406;  Dixon  v.  Gayfere,  17  Beav.  421; 
21  Beav.  118;  Clarke  v.  Boyce,  3  Sim.  499;  Parrott  v.  Sweetland,  3  My. 
&  K.  655.  In  Alabama  the  lien  was  held  to  arise  in  case  of  an  exchange 
of  lands.     Burns  v.  Taylor,  23  Ala.  255. 

2  McCaudlish  v.  Keen,  13  Grat.  605  ;  James  v.  Bird,  8  Leigh,  51. 

8  Nairn  ik  Prowse,  6  Ves.  759  ;  Mackreth  v.  Symmoiis,  15  Ves.  342  ; 
Garson  v.  Green,  1  Johns.  Ch.  308;  Lewis  i\  Caperton,  8  Grat.  148; 
Plowman  v.  Riddle,  14  Ala.  169  ;  Hughes  v.  Kearney,  1  Sch.  &  Lef.  136; 
Saunders  v.  Leslie,  2  B.  &  B.  514 ;  Bradford  v.  Marvin,  2  Fla.  463. 

4  Ibid. ;  Saunders  v.  Leslie,  2  B.  &  B.  514. 

^  Hughes  I'.  Kearney,  1  Sch.  &  Lef.  135 ;  Gibbons  v.  Baddall,  2  Eq. 
Ab.  682:  Grant  v.  Mills,  2  Ves.  &  B.  306;  Cooper  v.  Spottiswood,  Taml. 
21  ;  Ex  parte  Peake,  1  ALadd  349;  Ex  parte  Loriug,  2  Rose,  79;  Saun- 
ders V.  Leslie,  2  B.  &  B.  514;  Winter  v.  Anson,  3  Kuss,  488;  1  S   &  S. 

311 


§  237.]  TRUSTS    BY    EQUITABLE    CONSTRUCTION.       [CHAP.   VII. 

them  as  evidences  of  the  amount  of  the  purchase-money  and 
debt,  or  as  security  in  addition  to  his  lien.  But  if  the  secu- 
rity taken  is  totally  distinct  and  independent,  it  will  be  very 
strong  evidence  that  it  was  intended  to  be  substituted  in  place 
of  the  lien ;  ^  and  if  it  is  in  any  way  inconsistent  with  the 
continued  existence  of  the  lien,  it  will,  of  course,  be  conclu- 
sive evidence  that  the  lien  was  abandoned  or  extinguished.^ 
Lord  Eldon,  after  a  careful  review  of  the  authorities,  came  to 
the  conclusion  that  every  case  depended  upon  its  own  peculiar 
facts  and  circumstances ;  that  different  judges  would  have 
determined  the  same  case  differently ;  and  that  there  was  no 
general  rule  that  was  satisfactory ;  and  he  adds,  "  If  I  had 
found  it  laid  down  in  distinct  and  inflexible  terms,  that  when 
the  vendor  takes  security  for  the  consideration  he  has  no  lien, 
that  would  be  satisfactory."  ^ 

§  237.  In  the  United  States,  the  rule  that  Lord  Eldon  said 
would  he  satisfactory  substantially  prevails.  Thus,  if  the  ven- 
dor does  any  act  which  manifests  an  intention  to  rely  upon 
any  security  independent  of  the  lien,  he  will  be  held  to  have 
waived  it ;  *  as  if  he  accept  a  mortgage  on  other  property,^ 

434;  Fawell  v.  Heelis,  Amb.  724;  Frail  v.  Ellis.  17  Eiig.  L.  &  Eq.  457: 
Buckland  v.  Pocknell,  13  Sim.  406;  Blair  v.  Bromley,  5  Hare,  542;  2 
Phill.  354;  Hewitt  v.  Loosemore,  9  Hare,  449;  Kyles  v.  Tait,  6  Grat. 
44;  Blackburn  v.  Gregson,  1  Bro.  Ch.  420;  Coppin  v.  Coppin,  2  P.  Wms. 
291;  Clark  i'.  Koyle,  3  Sim.  499;  Elliott  v.  Edwards,  3  Bos.  &  P.  181. 

1  Ibid.;  Gilman  v.  Brown,  1  Mason,  191;  Good  v.  Pollard,  9  Price, 
544;  10  Price,  109;  Parrott  v.  Sweetland,  3  My.  &  K.  655;  Nairn  v. 
Prowse,  6  Ves.  752;  Mackreth  v.  Symmons,  15  Yes.  342. 

2  Manly  v.  Slason,  21  Vt.  271;  Hallock  v.  Smith,  3  Barb.  267;  Ex 
parte  Parkes,  1  Glyn.  &  Jam.  228. 

8  Mackreth  v.  Symmons,  15  Ves.  342. 

*  Blackburn  v.  Gregson,  1  Bro.  Ch.  424,  and  notes  by  Perkins;  Buntin 
V.  French,  16  N.  H.  592;  Coit  v.  Fougera,  36  Barb.  195;  Griffin  v.  Blan- 
chard,  17  Cal.  70;  Phelps  v.  Conover,  25  Til.  309;  Selby  v.  Stanley,  4 
Minn.  65;  Hane  v.  Van  Deusen.  32  Barb.  92;  Parker  v.  Sewell,  24  Tex. 
238;  Dibble  v.  Mitchell,  15  Ind.  435. 

5  Richardson  v.  Ridgely,  8  Gill  &  J.  87:  White  v.  Dougherty,  1  Mart. 
&  Y.  309;  Young  v.  Wood,  11  B.  Mon.  123;  Mattix  v.  AVeand,  19  Ind. 
151 ;  Harris  v.  Harlan.  14  Ind.  104;  Shelby  v.  Perrin,  18  Tex.  515;  Cam- 
den V.  Vail,  23  Cal.  633;  Hadley  v.  Pickett,  25  Ind.  450. 

312 


CHAP,  VII.]  vendor's  lien.  [§  237. 

or  a  bond  or  note  with  a  third  person  as  surety  ^  or  in- 
dorser,^  or  if  he  takes  a  pledge  of  stock  as  collateral,'^  he  will 
be  held  to  have  waived  his  lien.  So,  if  he  takes  a  mortgage 
on  the  same  land  sold  for  part  of  the  purchase-money,  or  for 
the  whole,^  he  will  be  held  to  have  waived  his  lien  for  the 
remainder.^  But  in  these  cases  the  presumption  that  the 
vendor  intended  to  waive  his  lien  by  taking  such  securities 
may  be  rebutted  by  any  satisfactory  evidence  that  it  was  not 
intended  that  the  lien  should  be  waived.^  On  the  otlier  hand, 
the  presumption  of  a  lien  may  be  rebutted,  though  no  security 
is  taken,  by  satisfactory  evidence  that  it  was  intended  that  the 
lien  should  not  be  relied  on.'^  But,  generally,  the  mere  taking 
of  the  vendee's  note,  or  bond,  or  bill,  or  check,^  or  the  renewal 
of  these  evidences  of  debt,^  will  not  be  sufficient  evidence  that 
the  vendor  intended  to  waive  his  lien.^*'     But  any  conduct  in 

1  Boon  V.  Murphy,  6  Blackf.  272;  Williams  v.  Roberts,  5  Ohio,  35; 
Mayham  v.  Coombes,  14  Ohio,  428  ;  AVilson  v.  Graham,  5  Munf.  297; 
Francis  v.  Hazelrigg's  Ex'rs,  Hardin,  48;  Way  v.  Patty,  1  Carter,  102; 
Burger  v.  Potter,  32  111.  6G ;  Sears  v.  Smith,  2  Mich.  243 ;  Porter  v.  Du- 
buque, 20  Iowa,  440. 

2  Foster  v.  Trustees,  3  Ala.  302;  Oilman  v  Brown,  1  Mason,  191;  4 
Wheat.  255;  Marshall  v.  Christmas,  3  Humph.  616;  Burke  v.  Gray,  6 
How.  (Miss.)  527;  Conover  v.  Warren,  1  Gilm.  498;  Bradford  v.  Marvin, 
2  Fla.  463. 

8  Lagow  V.  Badollet,  1  Blackf.  416. 

4  Little  V.  Brown,  2  Leigh,  355;  Hadley  v.  Pickett,  25  Ind.  4.50.  But 
see  to  the  contrary.  Boos  v.  Ewing,  17  Ohio,  520;  Baum  v.  Grigsby,  21 
Cal.  172. 

^  Brown  v.  Oilman,  4  Wheat.  291;  Fish  v.  Howland,  1  Paige,  30; 
Phillips  V.  Saunderson,  1  Sm.  &  M.  465.  Even  if  the  mortgage  is  void. 
Camden  v.  Vail,  23  Cal.  633;  Way  v.  Patty,  1  Ind.  102. 

6  Mims  V.  Macon  and  Western  R.  R.,  3  Kelly,  333  ;  Campbell  v.  Bald- 
win, 2  Humph.  248;  Kyles  v.  Tait,  6  Grat.  48;  Tiernan  v.  Thurman,  14 
B.  Mon.  277;  Sears  v.  Smith,  2  Mich.  243;  Daughaday  v.  Paine,  6  Minn. 
•443. 

■^  Clark  V.  Hunt,  3  J.  J.  Marsh.  553;  Phillips  v.  Saunderson,  1  Sm.  & 
M.  462;  Redford  v.  Gibson,  12  Leigh,  332;  Scott  v.  Orbinson,  21  Ark.  202. 

8  Honore  v.  Bakewell,  6  B.  Mon.  67;  Baum  v.  Grigsby,  21  Cal.  172; 
Walker  v.  Sedgwick,  8  Cal.  398. 

»  Mims  V.  Lockett,  23  (ia.  237. 

w  Cox  V.  Feiiwick,  3  Bil)b,  183;  Evans  v.  Goodlet,  1  Blackf.  246;  Tay- 
lor V.  Hunter,  5  Humph.  569;  Garson  v.  Green,  1  Johns.  Ch.  308;  White 

313 


§  238.]  TRUSTS    BY    EQUITABLE    CONSTRUCTION.       [CHAP.  VII. 

the  vendor  that  makes  it  unjust,  unfair,  or  inequitable  for  him 
to  insist  upon  the  lien,  will  discharge  it.^  If  worthless  secu- 
rities are  fraudulently  imposed  upon  the  vendor,  he  will 
retain  his  lien.^ 

§  238.  It  has  been  said  before,  that  the  lien  for  the  pur- 
chase-money is  not  an  estate  in  the  land,  nor  is  it  a  charge 
on  the  land  ;  but  it  is  an  equity  between  the  parties,  their 
representatives  or  privies  in  law  or  estate,  to  be  resorted  to 
in  case  of  failure  of  payment  by  the  vendee.  It  is  a  possibil- 
ity that  may  be  perfected  by  proceedings  in  equity,  into  an 
actual  estate  or  interest  in  the  land.^  Having  such  a  charac- 
ter, it  is  generally  considered  to  be  a  personal  privilege  in  the 
vendor,  which  descends  to  his  heirs  or  representatives  with 
the  debt  for  the  purchase-money,  but  which  cannot  be  as- 
signed to  a  third  person,  with  or  without  the  bond,  note,  bill, 
or  check  which  the  vendee  gave  for  the  consideration.*     If 

V.  Williams,  1  Paige,  502;  Clark  v.  Hunt  3  J.  J.  Marsh.  553;  Thornton 
r.  Knox,  6  B.  Mon.  74 ;  Aldridge  i'.  Dunn,  7  Blackf.  249;  Ross  v.  Whitson, 
6  Yerg.  .50;  Tompkins  v.  Mitchell,  2  Rand.  428;  Truebody  v.  Jacobson, 
2  Cal.  269;  Pinchain  v.  Collard,  13  Tex.  333;  Sheratz  v.  Nicodemus,  7 
Yerg.  9;  Manly  v.  Slason,  2  Vt.  271;  Baum  v.  Grigsby,  21  Cal.  172. 

1  Redfovd  v.  Gibson,  12  Leigh,  343;  Fowler  v.  Rust,  2  Marsh.  294; 
Clark  I'.  Hunt,  3  J.  J.  Marsh.  558;  Phillips  v  Saunderson,  1  Sm.  &  M. 
462;  McCown  v.  Jones,  14  Tex.  682;  Scott  v.  Orbinson,  21  Ark.  202; 
Clamer  v.  Rawlings,  9  S.  &  M.  122;  Lynch  v.  Dearth,  2  Pa.  St.  101. 

2  Coit  V.  Fougera,  36  Barb.  195;  Toby  v   McAllister,  9  Wis.  403. 

8  Young  V.  Williams,  17  Cal.  403;  21  Cal.  227,  Keith  v.  Horner,  32 
111    524. 

*  Dixon  V.  Dixon,  1  Md.  Ch.  220;  Wellborn  v.  Williams,  8  Ga.  258; 
Green  v.  Demoss.  10  Humph.  371;  Walker  v.  Williams,  30  Miss.  165; 
Briggs  V.  Hill,  6  How.  (Miss.)  362;  Shall  v.  Biscoe,  18  Ark.  142;  Brush 
V  Kinsley,  14  Ohio,  20  ;  Horton  v.  Horner,  Id.  437 ;  Sheratz  v.  Nicode- 
mus, 7  Yerg.  9;  Gann  v.  Chester,  5  Yerg.  205;  White  r.  Williams.  1* 
Paic^p,  502 ; '^Hallock  r.  Smith,  3  Barb.  267;  Green  v.  Crockett,  2  Dev,  & 
Bat.  Eq.  390;  Moreton  v.  Harrison,  1  Bland,  491;  Webb  v.  Robinson,  14 
Ga.  216;  Dickinson  i-.  Chase,  1  Morris  (Iowa),  492;  Jackman  v.  Hallock. 
1  Ohio,  318;  Tiernan  v.  Beam,  2  Ohio,  383;  Clairhorn  v.  Crockett,  3 
Yerg.  27;  Briggs  v.  Planters'  Bank,  1  Freem.  Ch.  574;  Iglehart  v.  Ami- 
ger,  1  Bland,  519;  Hayden  v.  Stuart,  4  Md.  Ch.  280;  Hall  v.  Maccubbin, 
6  Gill  &  J.  107;  Baum  v.  Grigsby,  21  Cal.  172  ;  Lewis  v.  Covilland,  Id. 
314 


CHAP.  Yil.]  vendor's    LIEN,  [§  238. 

one  of  several  purchasers  pays  the  whole  purchase-money,  he 
does  not  thereby  secure  a  lien  on  his  co-purchasers'  shares ;  ^ 
nor  does  a  lien  accrue  to  a  third  person  who  loans  the  pur- 
chase-money to  the  vendee  and  takes  his  note  therefor  ;2  but 
if  it  is  agreed  by  the  vendor  that  a  note  for  the  purchase- 
money  shall  be  given  to  a  third  person,  it  seems  that  the 
vendor's  lien  will  go  with  the  note.^  If  the  note  given  to  the 
vendor  for  the  purchase-money  is  indorsed  by  him,  and  after- 
wards paid  by  him,  his  lien  will  revive  and  attach  to  it.*  If 
a  surety  to  the  vendee's  note  or  bond  for  the  purchase-money 
is  obliged  to  pay  the  debt,  he  will  be  subrogated  to  the  ven- 
dor's lien,  and  will  have  a  right  to  have  it  enforced  for  his 
benefit.^  If  a  vendor  having  a  lien  on  real  estate  for  his 
purchase-money  enforces  his  debt  against  the  personal  assets 
of  a  deceased  vendee,  and  thereby  deprives  creditors  or  lega- 

178;  Williams  v.  Young,  Id.  227;  Keith  v.  Horner,  32  111.  524;  Richards 
V.  Learning,  27  111.  4ol ;  Watson  v.  Bane,  7  Md.  117.  But  in  Alabama, 
Texas,  Kentucky,  Indiana,  and  Iowa,  a  different  rule  prevails.  In  those 
States,  the  assignment  of  the  note  given  for  the  purchase-money  carries 
with  it  to  the  assignee  the  vendor's  lien.  Roper  v.  McCook,  7  Ala.  318; 
White  V.  Stover,  10  Ala.  411;  Grigsby  v.  Hair,  25  Ala.  327;  Griffin  v. 
Camack,  36  Ala.  695  ;  Murray  v.  Able,  18  Tex.  515;  McAlpin  v.  Burnett, 
19  Tex.  497;  Moore  v.  Raymond,  15  Tex.  554;  Edwards  v.  Bohannon,  2 
Dana,  98;  Honore  v.  Bakewell,  6  B.  Mon.  67;  Lagow  v.  Badollet,  1 
Blackf.  417;  Brumfield  v.  Palmer,  7  id.  227;  Fisher  v.  Johnson,  5  Ind. 
492;  Kern  v.  Hazlerigg,  11  Ind.  443;  Rakestraw  v.  Hamilton,  14  Iowa, 
147 ;  Pierson  v.  David,  1  Clarke,  23. 

1  Glasscock  v.  Glasscock,  17  Tex.  480. 

2  Stansell  v.  Roberts,  13  Ohio,  148 ;  Skeggs  v.  Nelson,  25  Miss.  88 ; 
Crane  v.  Caldwell,  14  111.  468. 

3  Dryden  v.  Frost,  3  My.  &  Cr.  670.  In  this  case  the  third  person  was 
a  prior  mortgagee,  and  had  the  title-deeds  in  his  possession.  Colcord  v. 
Scamonds,  5  B.  Mon.  265. 

*  1  Lead.  Ca.  in  Eq.  368. 

6  Kleiser  v.  Scott,  6  Dana,  137;  Welch  v.  Parran,  2  Gill,  329;  Ghise- 
lin  r.  Ferguson,  4  liar.  &  J.  522;  Magruder  v.  Peter,  11  Gill  &  J.  228; 
Burke  v.  Chrisman,  3  B.  Mon.  50;  Freeman  v.  Mebane,  2  Jones,  Eq.  44; 
Jordan  v.  Hudson,  11  Tex.  82;  Eddy  v.  Traver,  6  Paige,  521;  In  re 
McGill,  6  Barr,  501;  Kinney  v.  Harvey,  2  Leigh,  70;  Haffey  v.  Birchetts, 
11  Leigh,  S3;  Schermerhorn  v.  Barhydt,  0  Paige,  30;  Tompkins  r.  Mitch- 
ell, 2  Rand.  428;  Melery  v.  Cooper,  2  Bland,  199. 

315 


§  239.]  TRUSTS   BY   EQUITABLE   CONSTRUCTION.       [CHAP.  VII. 

tees  of  the  deceased  vendee  of  the  chance  of  being  paid  their 
debts  or  legacies,  equity  will  substitute  them  in  the  place  of 
the  vendor,  or  will  marshal  the  assets  in  order  to  do  justice 
to  all.i 

§  239.  This  equitable  lien  or  trust  prevails  against  the  pur- 
chaser, his  heirs,  and  all  persons  claiming  under  him  or  them 
with  notice  that  the  purchase-money  is  unpaid.^  It  prevails 
against  the  right  of  dower  of  the  widow  of  the  vendee,^  also 
against  a  voluntary  donee,  or  a  purchaser  without  notice,*  as 
also  against  a  purchaser  for  value,  if  he  had  notice  that  the 
purchase-money  remained  unpaid.^  If  the  purchaser  from 
the  vendee  has  not  paid  over  the  purchase-money,  equity  will 
attach  the  lien  or  trust  to  the  money  in  his  hands.^     But  a 

1  2  Sugd.  V.  &  P.  873-878  (7th  Am.  ed.),  where  the  cases  are  collected 
aud  couinieuted  ou. 

-  Hearle  v.  Botelers,  Gary,  Ch.  25;  Mackreth  v.  Symraons,  15  Ves. 
329;  Gibbons  v.  Baddall,  2  Eq.  Ca.  Ab.  682;  Walker  v.  Preswick,  2  Yes. 
622;  Elliot  v.  Edwards,  3  Bos.  &  P.  181;  Winter  v.  Anson,  3  Russ.  493; 
Garson  v.  Green,  1  Johns.  Ch.  308;  Warner  v.  Van  Alstyne,  3  Paige, 
513;  Wade  v.  Greenwood,  2  Robin.  475;  Ewbank  v.  Poston,  5  Mon.  285  ; 
Neil  V.  Kinney,  11  Ohio  St.  58. 

3  Warner  v.  Van  Alstyne,  3  Paige,  513;  Wilson  v.  Davidson,  2  Rob. 
385;  Ellicott  j;.  Welch,  2  Bland,  243;  Nazareth,  &c.  v.  Lowe,  1  B  Mon. 
257;  Fisher  v.  Johnson,  5  Ind.  492;  Crane  r.  Palmer,  8  Blackf.  120; 
Williams  v.  Wood,  1  Humph.  408;  Besland  r.  Hewett,  11  Sm.  &  M.  164. 

*  Upshaw  V.  Hargrave,  6  Sm,  &  M.  286;  High  v.  Batte,  10  Yerg.  186, 
335;  Mounce  r.  Byars,  16  Ga.  469;  Burlingame  i-.  Robbins,  21  Barb.  327; 
Hallock  V.  Smith,'  3  Barb.  267. 

6  Wilcox  V.  Calloway,  1  Wash.  38;  Graves  v.  McCall,  1  Call,  414; 
Redford  v.  Gibson,  12  Leigh,  332;  Wright  v.  AVoodland.  10  Gill  &  J. 
388;  Ghiselin  v.  Ferguson,  4  Har.  &  J.  .522  ;  Mounce  v.  Bvars,  11  Ga.  180; 
Thornton  v.  Knox,  6  B.  Mon.  74;  Honore  v.  Bakewell,  Id.  67;  Tiernan  r. 
Thurman,  14  B.  Mon.  279;  Eskridge  v.  McClure,  2  Yerg.  84;  Sheratz 
V.  Nicodemus,  7  Yerg.  9;  Pierce  v.  Gates,  7  Blackf.  162;  Brumfield  v. 
Palmer.  Id.  227;  McKnight  v.  Brady,  2  Mo.  110;  Briscoe  i'.  Bronaugh,  1 
Tex.  826;  Pintard  v.  Goodloe,  Hemp.  527;  Amory  r.  Reilly.  9  Ind.  490; 
Manly  r.  Slason,  21  Vt.  271;  Hallock  v.  Smith.  3  Barb.  267;  Cator  v. 
Pembroke,  1  Bro.  Ch.  302;  Ewbank  v.  Poston,  5  Mon.  291;  Mc.\lpin  i;. 
Burnett,  19  Tex.  497;  Pierson  v.  David,  1  Clarke,  23;  Grapeugether  v. 
Fejervary,  9  Iowa,  163;  Merritt  v.  Wells,  18  Ind.  171. 
^  Ripperdon  v.  Cozine,  8  B.  Mon.  465. 

316 


CHAP.  VII.]  TRUSTS    BY    DESCENT    OF    PROPERTY.  [§  289, 

bona  fide  purchaser  for  value  from  the  vendee,  without  notice, 
will  take  tlie  estate  unaffected  by  the  trust  or  lien  ;  ^  or  if  by 
intermediate  conveyances  through  persons  who  have  notice 
the  estate  finalh'  comes  to  a  bona  fide  purchaser  for  value 
without  notice,  it  will  be  discharged  of  the  lien.^  A  bona  fide 
purchaser  is  defined  to  be  one  who  at  the  time  of  his  pur- 
chase advances  a  new  consideration,  surrenders  some  security, 
or  does  some  other  act  which  leaves  him  in  a  worse  position 
if  his  purchase  should  be  set  aside  ;  ^  of  course,  a  mortgagee 
without  notice  for  a  new  consideration  comes  within  this 
definition."*  So,  a  conveyance  or  mortgage  to  individual  cred- 
itors without  notice  is  held  to  prevail  against  the  lien,  as 
where  the  equities  are  equal  the  legal  title  prevails.^  But  the 
lien  prevails  against  assignees  in  bankruptcy  or  insolvency, 
and  against  a  general  assignment  by  a  failing  debtor,  in  trust 
for  all  his  creditors.  In  these  cases  the  vendees  are  looked 
upon  as  volunteers,  and,  as  such,  they  have  the  rights  only 
of  the  debtor  himself.^     Notice  to  the  agent  of  the  purchaser 

1  Bayley  v.  Greenleaf,  7  Wheat.  46;  Clark  v.  Hunt,  3  J.  J.  Marsh. 
553;  Duval  v.  Bibb,  4  Hen.  &  M.  113;  Wood  v.  Bank  of  Kentucky,  5 
Mon.  194;  Blights,  &c.  v.  Bank,  &c.,  6  Mon.  192;  Taylor  v.  Hunter,  5 
Humph.  569;  Stewart  v.  Ives,  1  Sm.  &  M.  197;  Carnes  v.  Hubbard,  2  S.  & 
M.  108;  Dunlop  v.  Burnett,  5  Sm.  &  M.  702;  Work  v.  Brayton,  5  Ind.  396; 
Carter  v.  Bank  of  Georgia,  24  Ala.  37;  Bradford  v.  Harper,  25  Ala.  337; 
Webb  V.  Robinson,  14  Ga.  216  ;  Champion  v.  Brown,  6  Johns.  Ch.  402; 
Collier  v.  Harkness,  26  Ga.  362;  Selby  v.  Stanley,  4  Miss.  65;  Scott  i'. 
Orbinson,  21  Ark.  202. 

2  Boon  V.  Barnes,  23  Miss.  136. 
8  Ibid. 

*  Duval  i;.  Bibb,  4  Hen.  &  M.  113;  Wood  v.  Bank  of  Kentucky,  5  Mon. 
194;  Clark  v.  Hunt,  3  J.  J.  Marsh.  553;  Growing  v.  Behn,  10  B.  Mon. 
383. 

6  Bayley  v.  Greenleaf,  7  Wheat.  56;  Mitford  v.  Mitford,  9  Ves.  100; 
Moore  v.  Holcombe,  3  Leigh,  597;  Webb  v.  Robinson,  14  Ga.  216;  Dun- 
lop V.  Burnett,  5  Sm.  &  M.  702;  Johnson  v.  Cawthorn,  1  Dev.  &  Bat.  32; 
Harper  v.  Williams,  Id.  179;  Roberts  v.  Rose,  2  Humph.  145  ;  Gann  v. 
Chester,  5  Yerg.  205;  but  see  Brown  v.  Vanlier,  7  Humph.  239;  Shirley 
V.  Sugar  Ref.,  2  Edw.  505;  Repp  r.  Repp,  12  Gill  &  J.  341;  Ringgold  v. 
Bryan,  3  Md.  Ch.  488;  Aldridge  v.  Dunn,  7  Blackf.  249;  but  see  Chance 
V.  McWortee,  26  Ga.  315. 

«  Mitford  V.  Mitford,  9  Ves.  100;  Fawell  v.  Heelis,  Amb.  720;  Black- 

317 


§  2-40,]  TRUSTS    BY   EQUITABLE   CONSTRUCTION.       [rHAP.  VII. 

is  notice  to  the  purchaser,^  and  if  the  vendor  remain  in  pos- 
session it  will  be  sufficient  to  put  a  purchaser  upon  his  inquiry 
and  is  constructive  notice,^  and  any  fact  that  would  put  a 
reasonable  man  upon  his  inquiry  will  affect  the  purchaser 
with  notice.^  So,  if  a  purchaser  knows  that  a  part  of  the  pur- 
chase-money is  unpaid,  he  is  put  upon  his  inquiry  ;  ^  and  such 
purchaser  is  bound  to  take  notice  of  all  the  recitals  in  the 
deed  to  the  vendee.^ 

§  240.  A  person  may  also  become  a  trustee  by  construction, 
in  the  absence  of  fraud,  where  a  trust  is  created  ;  but  if  no 
trustee  is  appointed,^  or  the  trustee  named  is  incapable  of  tak- 
ing,' or  refuses  to  act,®  or  dies,^  or  the  office  becomes  vacant 

burn  V.  Gregson,  1  Bro.  Ch.  420;  Grant  r.  Mills,  2  Yes.  &  B.  306;  Ex 
parte  Peake,  1  Madd,  356;  Chapman  v.  Tanner,  1  Vern.  267;  Bayley  v, 
Greenleaf,  7  Wheat.  54;  Green  v.  Demoss,  10  Humph.  371;  Brnwn  v. 
Heathcote,  1  Atk.  160;  Simond  u.  Ililbert,  1  Russ.  &  My.  729;  Jewson  v. 
Moulson,  2  Atk.  417;  Scott  v.  Surman,  Willes,  402  ;  Warrall  v.  Morlar, 
1  P.  Wras.  459.  And  so  of  judgment  creditors.  Flanders  v.  Thompson, 
•3  Woods,  9;  Rodgers  v.  Bowner,  45  N.  Y.  379  ;  Birkhard  v.  Edwards,  11 
Ohio,  84;  St.  Bank  v.  Campbell,  2  Rich.  (S.  C.  Eq.)  179;  Watkins  v. 
Russell,  15  Ark.  73;  Thomas  v.  Kennedy,  24  Iowa,  397;  Dunlop  r.  Bur- 
nett, 5  Sm.  &  M.  702. 

1  Mounce  v.  Byars,  11  Ga.  180  ;  Frail  v.  Ellis,  17  Eng.  L.  &  Eq.  457. 

'^  Ringgold  V.  Bryan,  3  Md.  Ch.  488  ;  Hamilton  v.  Fowlkes,  16  Ark. 
340  ;  Hopkins  v.  Garrard,  6  B.  Mon.  67. 

8  Frail  v.  Ellis,  17  Eng.  L.  &  Eq.  457  ;  Briscoe  v.  Bronaugh,  1  Tex. 
328. 

*  Manly  v.  Slason,  21  Yt  271. 

^  Kilpatrick  v.  Kilpatrick,  23  Miss.  124;  Thornton  v.  Knox,  6  B.  Mon. 
74  ;  Woodward  v.  Woodward,  7  B.  Mon.  116  ;  McRemmon  v.  INIartin,  14 
Tex.  318  ;  Tiernan  i-.  Thurman,  14  B.  Mon.  277;  Honore  v.  Bakewell,  6 
B.  Mon  67  ;  Hutchinson  v.  Patrick,  22  Tex.  318 ;  McAlpin  v.  Burnett, 
23  Tex.  649. 

6  White  V.  White,  1  Bro.  Ch.  12  ;  Dodkin  v.  Brunt,  L.  R.  6  Eq.  580. 

■^  Sonley  v.  Clockmakers'  Co  ,  1  Bro.  Ch.  81;  Ex  parte  Turner,  1  Bailey, 
Ch.  395. 

8  King  V.  Donnelly,  5  Paige,  46;  Haw  ley  v.  James,  Id.  318;  De  Pey- 
ster  V.  Clendining,  8  Paige,  295;  Lee  v.  Randolph,  2  Hen.  &  M.  12; 
Ex  parte  Kunst,  1  Bailey,  489  ;  Dawson  j'.  Dawson,  Rice,  243  ;  Field 
t".  Arrowsmith,  3  Humph.  448. 

3  Dunscomb  v.  Dun.scorab,  2  Hen.  &  M.  11. 

318 


CHAP.  VII.]       TRUST    PROM    GIFT    OF    TRUST    PROPERTY.  [§  241. 

ill  any  other  way ;  ^  in  all  such  cases  every  person  to  whom 
the  trust  property  comes,  by  reason  of  there  being  no  trustee, 
will  be  treated  as  a  trustee,  and  he  may  be  ordered  to  account, 
and  to  convey  the  property  to  such  other  persons  as  trustees 
as  the  court  may  appoint.^  As  where  a  man  makes  a  devise 
in  trust  by  his  will,  but  names  no  trustee,  the  land  descends 
to  his  heirs,  but  in  trust  for  the  purposes  named  in  the  will ; 
and  his  heirs  would  be  required  to  account  for  the  property, 
and  to  convey  the  same  to  such  trustees  as  the  court  might 
appoint.^  Courts  of  equity  have  inherent  jurisdiction  over 
all  matters  of  trust  and  trustees,  and  they  never  allow  a  trust 
to  fail  for  want  of  a  trustee.*  So,  if  a  party  forbidden  by  law 
to  convey  his  property  to  some  person  standing  in  a  certain 
relation  to  him,  as  if  a  husband  who  cannot  convey  to  his 
wife  should  make  an  absolute  conveyance  directly  to  her,  the 
conveyance  would  not  pass  the  legal  title,  but  equity  would 
construe  it  into  a  declaration  of  trust,  and  the  liusband  into 
a  trustee  for  the  wife.^  Therefore  if,  upon  the  death  of  the 
trustee  without  heirs,  the  legal  title  should  escheat  to  the 
Crown  or  the  State,  equity  would  follow  the  property  and 
execute  the  trust  by  the  appointment  of  new  trustees  or 
otherwise.^ 

§  241.  Another  instance  of  a  constructive  trust  without 
fraud  is  where  a  person  receives  the  trust  property  from  the 
trustee  without  notice  of  the  trust,  by  way  of  voluntary  gift 
or  without  paying  a  valuable  consideration.  If  such  person 
had  notice  of  the  trust,  it  would  be  a  fraud  to  receive  the 

1  Gibson's  Case,  1  Bland,  138 

2  Ibid.;  Cushney  v.  Henry,  4  Paige,  345;  McTntire  School  v.  Zan. 
Canal,  &c.,  9  llam.  203;  White  v.  Hampton,  13  Iowa,  259;  McKennan  v. 
Phillips,  6  Whart.  571  ;  Boykin  v.  Ciples,  2  Hill,  Eq.  200;  Wilson  v. 
Towle,  36  N.  II.  129;  Pool  v.  Curamings,  20  Ala.  5(33;  Griffith  v.  Griffith, 
5  B.  Mon.  113. 

3  Stone  V.  Griffin,  3  Vt.  400. 

*  McCartney  v.  Bostwick,  32  N.  Y.  53;  Vidal  v.  Girard.  2  How.  128. 

5  Hnntly  v.  Huntly,  8  Ired.  Eq.  2.50;  Garner  r.  Garner,  Biisbee.  Eq.  1. 

6  Stat.  4  &  5  Will.  IV.  c.  23;  Hughes  v.  Wells,  9  Hare,  749;  13  Eng. 
L.  &  Kq.  389. 

319 


§  242.]  TRUSTS    BY    EQUITABLE    CONSTRUCTION.       [CHAP.  VII. 

trust  fund  even  if  lie  paid  a  valuable  consideration,  and  he 
would  be  held  as  a  constructive  trustee ;  ^  but  if  he  paid  a 
valuable  consideration  without  notice,  he  would  hold  the 
property  unaffected  by  the  trust.^  And  if  he  receives  the 
property  without  paying  a  valuable  consideration,  and  with- 
out notice,  equity  holds  the  absence  of  a  consideration  as 
equivalent  to  notice,  and  construes  the  taker  into  a  trustee, 
and  liable  as  such  to  the  same  extent  as  the  trustee  from 
whom  he  took  it.^  But  if  a  person  comes  into  possession  of 
the  trust  property,  not  by,  under,  or  through  the  trustee,  but 
against  him,  as  by  disseizing  or  ousting  him,  he  will  not  be 
bound  by  the  trust,  although  he  have  notice  of  it ;  for  the 
disseizor  creates  a  title  for  himself  paramount  to  the  title  of 
the  trustee,*  and  all  outstanding  terms  attending  the  inheri- 
tance will  attend  the  title  of  the  disseizor  until  he  is  dispos- 
sessed by  some  other  paramount  title.^  In  States  where 
registry  laws  are  in  force,  the  registry  of  a  deed  from  a 
grantor  who  had  no  right  to  the  land  is  not  constructive 
notice  to  the  true  owner  that  such  deed  has  been  made,  and 
it  is  constructive  notice  only  to  subsequent  purchasers  under 
the  same  grantor.*^ 

§  242.  Analogous  to  the  gift  or  sale  of  the  trust  property 
by  trustees  is  the  right  of  dealing  with  its  property  by  a  cor- 
poration. A  corporation  holds  its  property  in  trust,  firsts  to 
pay  its  creditors,  and  second  to  distribute  to  its  stockholders 
pro  rata."*  If  therefore  a  corporation  should  dissolve,  and 
divide  its  property  among  its  shareholders  without  first  pay- 
ing its  debts,  equity  would  enforce  the  claims  of  its  creditors 
by  converting  all  persons,  except  bona  fide  purchasers  for 
value,  to  whom  its  property  had  come,  into  trustees,  and  would 

i.4«/e,  §220.  2  ^«/e,  §§  217,  218. 

3  Maiisell  V.  Mansell,  2  P.  Wms.  691 ;  Pye  v.  George,  1  P.  Wras.  128. 

*  Finch's  Case,  4  Inst.  8-3;  Sugd.  Gilb.  Uses,  429. 

8  Reynolds  v.  Jones,  2  S.  &  S.  206. 

6  Bates  V.  Norcross,  14  Pick.  225;  Tilton  v.  Hunter,  11  Shep.  29;  Stuy- 
vesant  v.  Hall,  2  Barb.  Ch.  151;  Keller  r.  Nutz,  5  S.  &  R.  246;  Woods  v. 
Farmene,  7  Watts,  382;  Crockett  v.  McGuire,  10  Miss.  34. 

7  National  Bank,  &c.  v.  Lake  Shore,  &c.  R.  R.  Co.,  21  Ohio  St.  232. 

320 


CHAP.  VII.]      TRUST   FROM   GIFT   OF   TRUST   PROPERTY.  [§  242. 

compel  them  to  account  for  the  property  and  contribute  to 
the  payment  of  the  debts  of  the  corporation  to  the  extent 
of  its  property  in  their  hands.*  In  England,  the  doctrine 
of  constructive  trusts  is  not  enforced  against  the  Bank  of 
England  in  regard  to  its  stock  standing  upon  its  books  ;  the 
bank  is  bound  to  recognize  only  the  person  who  has  the  legal 
title.2  But  Chief-Justice  Taney  said  that  the  decisions  as  to 
the  Bank  of  England  were  exceptions  depending  upon  the 
policy  of  the  acts  of  parliament  in  reference  to  the  bank,  and 
that  certainly  none  of  the  English  cases  convey  the  idea  that, 
upon  general  principles  of  law,  a  bank  is  not  bound  to  notice 
a  trust  of  its  own  stocks,  and  must  look  only  at  the  legal 
estate.^  In  the  United  States  it  is  well  established,  that 
if  a  corporation  that  requires  a  transfer  of  its  stock  to  be 
made  by  its  own  ofhcers  upon  its  own  books  permits  a  transfer 
to  be  made,  by  an  executor,  trustee,  or  guardian,  of  stock 
held  by  such  persons  in  a  fiduciary  capacity,  such  corporation, 
knowing  the  trust,  and  that  the  transfer  is  made  for  pur- 
poses other  than  such  trust,  will  be  held  in  equity  as  a 
constructive  trustee  of  the  stock  thus  wrongfully  conveyed, 
and  will  be  liable  to  make  it  good  to  the  cestui  que  trusts 

1  Mumma  v.  Potomac  Co.,  8  Pet.  281;  Vose  v.  Grant,  15  Mass.  515; 
Spear  v.  Grant,  16  Mass.  9;  Wood  v.  Dumraer,  3  Mason,  308;  2  Story's 
Eq.  Jur.  §  1252;  Hill  v.  Fogg,  41  Mo.  562;  Hastings  v.  Drew,  76  N.  Y.  9. 

2  Pearson  v.  B'k  of  Eng.,  2  Bro.  Ch.  529;  Hartga  v.  B'k  of  Eng.,  3  Ves. 
Jr.  55;  B'k  of  Eng.  v.  Parsons,  5  Ves  668;  Austin  v.  B'k  of  Eng.,  8  Ves. 
522;  B'k  of  Eng.  v.  Lunn,  15  Ves.  583;  Bristed  v.  Williams,  3  Hare,  235; 
Humberstone  v.  Chase,  2  Y.  &  C.  209;  Franklin  v.  B'k  of  Eng.,  9  B.  &  C. 
156;  B'k  of  Eng.  v.  Moffat,  3  Bro.  Ch.  260;  Pearson  >\  B'k  of  Eng.,  2  Cox. 
178;  Rider  v.  Kidder,  10  Ves.  369;  Ripley  v.  Waterworth,  7  Ves.  440; 
Stat.  4  W.  &  M.  c.  3,  §  10;  5  W.  &  M.  c.  20,  §  20;  1  Geo.  I.  St.  2,  c.  19, 
§  12;  30  Geo.  II.  c.  19,  §  49 ;  7  Will.  IV.  &  1  Vic.  c.  26;  8  &  9  Vic.  c. 
97 ;  Lewin  on  Trusts  (2d  Am.  ed.),  32. 

'  Lowry  v.  Commercial  B'k,  3  Bankers'  Mag  201  ;  10  Pa.  Law  Jour. 
(3  Am.  L.  J.  N.  s.)  111. 

*  Mechanics'  B'k  v.  Seton,  1  Pet.  299;  Porter  v.  B'k  of  Rutland,  19  Vt. 
410;  Albert  v.  Savings  B'k,  1  Md.  Ch.  Dec.  407;  2  Md.  160;  Farmers' 
B'k  V.  Wayman,  5  Gill,  356;  Atkinson  n.  Atkinson,  8  Allen,  15;  Loring 
V.  Salisbury  Mills,  125  Mass.  138;  Hold^n  v.  New  York  &  Erie  Bank,  72 
N.  Y.  2«0. 

VOL.  I.  — 21  321 


§  243.]  TRUSTS   BY   EQUITABLE   CONSTRUCTION.       [CHAP.  VII. 

And  if  a  corporation  negligently  enter  the  names  of  the  par- 
ties upon  its  books,  in  such  manner  that  the  stock  is  improp- 
erly transferred,  it  will  be  liable  as  a  constructive  trustee.^ 
Accordingly  a  corporation  has  a  right  to  require  from  all  fidu- 
ciary holders  of  stock  evidence  of  their  authority  to  make  the 
transfer. 2  It  has  been  held  that  the  mere  addition  of  the 
word  trustee,  witliout  any  reference  to  the  terms  of  the  trust 
or  the  persons  of  the  cestuis  que  trust,  is  not  sufficient  notice 
to  a  bank  to  render  it  liable  in  case  the  stock  is  wrongfully- 
transferred  ^y  the  holder; 3  and  it  is  said  that,  as  a  guardian 
has  a  right  to  sell  the  personal  property  of  his  ward,  a  corpo- 
ration is  not  liable  if  he  wrongfully  transfers  the  stock  on  its 
books.*  If  purchasers  of  stock  in  a  corporation  have  notice 
that  their  vendors  are  trustees,  they  will  be  held  as  construc- 
tive trustees ;  and  if  the  certificates  are  passed  over  to  the 
purchaser  with  the  word  trustee  added  to  the  name  of  the 
seller,  the  purchaser  is  bound  to  inquire  into  the  particulars  of 
the  trust,  and  he  has  such  notice  as  will  bind  him  as  a  trustee 
if  the  sale  was  wrongfully  made.^  But  if  the  purchaser  does 
not  see  the  certificates  of  the  stock  in  the  seller's  hands,  as  if 
the  seller  himself  transfers  the  stock  upon  the  books  of  the 
company,  and  brings  to  the  purchaser  new  certificates  that 
he  is  entitled  to  so  many  shares,  tbe  purchaser  would  not  be 
affected  vrith  notice,  and  would  not  be  held  as  a  trustee.^ 

§  243.  Again,  if  one  receives  a  conveyance  of  lands  or  other 
property  absolute  in  form,  but  really  as  security  for  a  debt, 

^  Farmers'  B'k  v.  Wayman.  5  Gill,  356. 

2  Bayard  v.  Farmers'  &  Mech.  Nat.  B'k,  2  Leg.  Int.  164. 

3  Albert  v.  Savings  B'k,  1  Md.  Ch.  Dec.  407 ;  2  Md.  160.  But  see  to 
the  contrary,  Walsh  v.  Stille,  2  Pars.  Eq.  17. 

^  B'k  of  Virginia  v.  Craig,  6  Leigh,  3.39.  But  see  Atkinson  v,  Atkinson, 
8  Allen,  15.  In  the  last  case,  however,  the  transfer  was  after  the  removal 
of  the  guardian  and  the  appointment  of  another  in  his  place. 

^  Walsh  V.  Stille,  2  Pars.  Eq.  17;  Reeder  v.  Barr,  4  Ham.  446;  Simons 
V.  S.  W.  Railway  B'k,  2  Am.  Law  Reg.  546;  Atkinson  v.  Atkinson,  10 
Allen,  15. 

^  Lowry  v.  Commercial  B'k,  3  Bankers'  Mag.  2111;  10  Pa.  Law  Jour. 
Ill;  Albert  v.  Savings  B'k,  2  Md.  160;  Atkinson  v.  Atkinson,  10  Allen,  15. 
322 


CHAP.  VII.]  CONVEYANCE    AS    SECURITY.  [§  243. 

he  will  hold  the  legal  title  in  trust  for  the  grantor  after  the 
payment  of  the  debt,  and  before  a  reconveyance.^  So,  if  one 
receives  personal  property,  agreeing  to  hold  it  for  another,  or 
to  sell  it  and  pay  the  proceeds  to  the  holder  of  a  note,  draft, 
or  other  debt,  he  becomes  a  trustee,  and  a  bill  in  equity  may  be 
maintained  against  him  and  his  pledges  to  enforce  the  trust.^ 
But  if  such  conveyance  is  fraudulent  and  void,  the  bona  fide 
holder  of  the  note  or  draft  cannot  enforce  the  trust.^  In 
England,  upon  the  death  of  the  mortgagee  the  mortgage  debt 
goes  to  his  personal  representatives,  but  the  fee  in  the  mort- 
gaged real  estate  descends  to  his  heirs,  if  not  otherwise  dis- 
posed of ;  but  his  heirs  hold  it  upon  a  constructive  trust,  as 
security  for  the  debt,  which  has  gone  to  his  executors  or  ad- 
ministrators.* In  nearly  all  the  United  States,  both  the  debt 
and  the  mortgage  security  are  chattel  interests,  and  go  to 
the  executors  or  administrators,  and  not  to  the  heirs,^  and 
payment  of  the  mortgage  debt  discharges  the  mortgage ;  but 
while  the  mortgagee  is  in  possession,  he  is  a  constructive 
trustee  up  to  the  time  that  the  mortgagor's  equity  of  redemp- 
tion expires,  and  he  is  bound  to  account  for  the  rents  and 
profits  in  due  course  of  administration.^     It  has  even   been 

1  Maverick,  &c.  Soc.  v.  Lovejoy,  6  Allen,  163;  Baldwins.  Bannister,  .3 
P.  Wms.  251;  Poole  v.  Pass,  1  Beav.  600;  Cm.  Dig.  tit.  15;  Mort.  c.  3, 
§  5;  tit.  15,  c.  2,  §  39;  Wilkinson  i'.  Stewart,  30  111,  48;  Smyth  v.  Carlisle, 
16  N.  H.  464. 

2  Michigan  State  Bank  v.  Gardner,  15  Gray,  362;  Ulman  v.  Barnard.  7 
Gray,  554;  Martin  v.  Coles,  1  M  &  S.  140;  Gi'aham  v.  Dyster,  6  M.  &  S. 
1;  Rodriquez  v.  Hefferman,  5  Johns.  Ch.  417;  De  Wolf  i'.  Gardner,  12 
Cusb.  19;  Ellis  v.  Lamme,  42  Mo.  153;  Petersham  v.  Tash,  2  Stra.  1178; 
Warner  y.  Martin,  11  How.  224;  Evans  v.  Potter,  2  Gallison,  13;  Daubigny 
V.  Duval,  5  T.  R.  604;  Guerreiro  v.  Peile,  3  B.  &  Aid.  616;  De  Bouchout 
V.  Goldsmid,  5  Ves.  211;  Skinner  v.  Dodgs,  4  Hen.  &  M.  423;  Newson  v. 
Thornton,  6  East,  17;  McCombie  v.  Davies,  7  East,  5;  Kinder  v.  Shaw, 
2  Mass.  398;  Van  Amriiige  v.  Peabody,  1  INIason,  440. 

8  Potter  V.  McDowall,  43  Mo.  93. 

4  Ellis  V.  Guavas,  2  Ch.  Ca.  60;  Chase  v.  Lockerman,  11  G.  &  J.  185. 

6  See  Greenleafs  Cruise,  Dig.  tit.  1.5,  c.  2,  §§  39,  40,  and  notes;  4  Kent, 
160,  194. 

8  Coppring  v.  Cooke,  1  Vern.  270;  Bentham  v.  Haincourt,  Pr.  Ch.  30; 
Parker  v.  Calcroft,  6  Madd.  11;  Hughes  c.  Williams,  12  Ves.  493;  Mad- 
docks  V.  Wren,  2  Ch.  R.  109. 

323 


§  244.]  TRUSTS    BY    EQUITxVBLE   CONSTRUCTION.       [CHAP.  VII. 

thought  that  he  is  liable  for  the  rents  and  profits  after  he  has 
transferred  his  mortgage  ;  ^  but,  as  he  has  a  right  to  assign 
his  mortgage  without  notice  to  the  mortgagor,  it  would  seem 
that  he  would  not  be  liable  for  anything  after  he  had  assigned 
his  mortgage  and  the  possession.^  If  a  mortgagee  assigns  the 
mortgage  debt  but  not  the  mortgage,  he  holds  the  title  to 
the  mortgaged  premises  in  trust  for  the  owner  of  the  debt.^ 
So  one  who  takes  a  mortgagee's  title  holds  it  in  trust  for 
the  owner  of  the  debt  which  the  mortgage  was  intended  to 
secure.* 

§  244.  At  common  law,  if  a  testator  appointed  his  debtor 
to  be  the  executor  of  his  will,  the  debt  was  extinguished,  on 
the  ground  that,  as  the  executor  could  not  maintain  an  action 
against  himself,  the  remedy  was  gone,  and  where  the  remedy 
is  gone,  the  debt  is  gone.^  Equity,  however,  construes  the 
debtor,  although  he  is  executor,  to  be  a  trustee,  and  the  cred- 
itors, legatees,  and  next  of  kin  of  the  testator  can  enforce  the 
trust  by  compelling  the  executor  to  account  for  the  amount 
of  the  debt  due  from  him  to  the  testator.^  In  most  of  the 
United  States  this  matter  is  regulated  by  statute,  and  the  ex- 
ecutor may  be  required  by  the  Probate  Court  to  put  the 
amount  of  his  debt  to  the  testator  into  his  inventory,  or  the 
Court  of  Probate  may  require  the  executor  to  charge  himself 
with  the  amount  of  his  debt  in  his  account.''  And  so  legatees 
and  distributees  may  become  constructive  trustees  for  cred- 
itors of  the  estate,  if  the  executor  or  administrator,  by  accident 

1  Venables  v.  Foyle,  1  Ch.  Ca.  3. 

2  Ringham  v.  Lee,  15  Sim.  400;  Re  Radcliffe,  22  Beav.  20L 

3  Ton-ey  v.  Morrill,  53  Vt.  331. 
*  Jordan  v.  Cheney,  74  ]\Ie.  359. 

5  2  Williams'  Ex'rs,  1129;  2  Story's  Eq.  Jiir.  §  1209. 

"  Berry  v.  Usher,  11  Ves.  90;  Simmons  v.  Gutteridge,  13  Ves.  264; 
Carey  v.  Goodinge,  3  Bro.  Ch.  Ill;  Erringtou  v.  Evans,  2  Dick.  456; 
Flud  V.  Rumsey,  Yel.  160;  Phillips  v.  Phillips,  Freem.  11;  1  Ch.  Ca.292; 
Brown  v.  Selwyn,  Cas.  t.  Talb.  203;  3  Bro.  P.  C.  607;  2  Story's  Eq.  Jur. 
§  1209. 

■^  Pusey  V.  Clemson,  9  S.  &  R.  204;  Griffith  v.  Chew,  8  S.  &  R.  32  ;  Hill 
on  Trustees,  172,  notes  (4th  Am.  ed.). 

824 


CHAP,  VII.]  TRUSTEE    DE    SON    TORT.  [§  245. 

or  mistake,  pays  over  or  distributes  the  estate  before  all  debts 
are  paid.  The  executor  may  be  sued  at  law  in  such  case  by 
the  creditor,  and  he  may  recover  over  against  the  persons  to 
whom  he  has  paid  the  estate.  In  equity,  however,  creditors 
can  follow  the  fund  liable  for  their  debts  into  the  hands  of 
the  persons  to  whom  it  has  come,  and  treat  them  as  construc- 
tive trustees,  as  they  are  not  entitled  to  anything  out  of  the 
estate  till  the  debts  are  first  satisfied.^ 

§  245,  A  person  may  become  a  trustee  by  construction,  by 
intermeddling  with,  and  assuming  the  management  of,  prop- 
erty without  authority.  Such  persons  are  trustees  de  son  tort, 
as  persons  who  assume  to  deal  with  a  deceased  person's  estate 
without  authority  are  administrators  de  son  tort.  Thus  an 
administrator  has  no  right  to  interfere  with  the  real  estate  of 
an  intestate  unless  it  is  wanted  to  pay  debts  ;  and  if  he  assume 
to  act  in  relation  to  the  real  estate  as  a  trustee,  those  inter- 
ested may  treat  him  as  such,  and  he  cannot  demur  to  a  bill 
charging  him  with  neglect  of  duty,  and  praying  for  his  re- 
moval.2  If  one  enters  upon  an  infant's  lands,  and  takes  the 
rents  and  profits,  he  may  be  charged  as  a  guardian  or  trustee,^ 
and  so  if  one  takes  personal  property.*  If  a  deceased  person 
holds  money  or  other  property  in  trust  for  another,  and  his 
heir,  executor,  administrator,  or  other  person  assume  posses- 
sion of  such  property,  a  constructive  trust  will  be  imposed 
upon  them,^     During  the  possession  and  management  by  such 

1  2  Story's  Eq.  Jiir.  §§  1250,  1251;  Russell  v.  Clark,  7  Cranch,  69;  Mc- 
Call  V.  Harrison,  1  Brock.  126;  Buck  v.  Swazey,  35  Me.  52;  Riddle  i?. 
Mandeville,  5  Cranch,  321);  Anon.  1  Vern.  162;  Xewman  v.  Barton,  2 
Vern.  205;  Noel  v.  Robinson,  1  Vern.  94;  White  School  House  v.  Post, 
31  Conn.  240;  Boddy  v.  Lefevre,  1  Hare,  602,  n. 

2  Le  Fort  v.  Defafield,  3  Edw.  31;  McCoy  v.  Scott,  2  Rawle,  222; 
Schwartz's  Estate,  14  Pa.  St.  42;  People  v.  Houghtaling,  7  Cal.  348. 

8  Wyllie  V.  Ellice,  1  Hare,  505;  Drury  v.  Connor,  1  H.  &  G.  220; 
Bloornfield  v.  Eyre,  8  Beav.  250. 

*  Chaney  v.  Smallvvood,  1  Gill,  367;  Goodhue  v.  Barnwell,  Rice.  Eq. 
198;  Bennett  v.  Austin,  81  N.  Y.  308. 

^  White  School  House  v.  Post,  31  Conn.  248;  People  r.  Houghtaling, 
7  Cal.  348. 

325 


§  246.]  TRUSTS   BY   EQUITABLE   CONSTRUCTION.       [CHAP.  VII. 

constructive  trustees  they  are  subject  to  the  same  rules  and 
remedies  as  other  trustees ;  ^  and  they  cannot  avoid  their 
liability  by  showing  that  they  were  not  in  fact  ti-ustees,^  nor 
can  they  set  up  the  statute  of  limitations.^  Of  course,  such 
unauthorized  persons  will  always  be  liable  to  be  deprived  of 
the  possession  at  the  suit  of  those  beneficially  interested,  and 
they  will  be  liable  for  all  the  costs,  expenses,  and  damages 
Avliich  their  unauthorized  intermeddling  may  have  occasioned. 
Still  there  may  be  cases  where  an  unauthorized  person  may 
interfere  from  necessity  to  preserve  and  protect  the  property. 
In  such  cases  courts  of  equity  have  power  to  do  exact  justice 
by  decrees  as  to  costs,  compensation,  and  other  similar  mat- 
ters. In  all  cases  a  person  beneficially  interested  coming 
into  equity  must  do  equity,  and  join  all  who  have  interfered 
■with  the  possession  ;  and  he  cannot  proceed  against  one  alone 
as  at  law  for  a  trespass,  and  compel  one  to  bear  the  whole 
burden  of  the  wrongful  intrusion.* 

§  246.  If  an  agent  is  employed  by  a  trustee  and  thus  comes 
into  possession  of  the  property,  he  will  be  accountable  to  his 
employer,  and  will  not  be  responsible  as  a  constructive  trus- 
tee.^ But  if  such  agent  should  act  fraudulently  or  collusively 
he  might  be  made  a  trustee  by  construction,  and,  as  such, 
accountable  to  the  cestui  que  trust.^ 

1  Wilson  V.  Moore,  1  Myl.  &  K.  127. 

2  Rackham  v.  Siddall,  1  Mac.  &  G.  607;  2  Hall  &  T.  44;  16  Sim.  297; 
Hope  ('.  Liddell,  21  Beav.  183. 

3  Goodhue  v.  Barnwell,  Rice,  Eq.  198. 

*  Wyllie  V.  Ellice,  6  Hare,  51.5;  Phene  v.  Gillon,  5  Hare,  5. 

^  Keane  r.  Robarts,  4  Madd.  332;  Nickolson  v.  Knowles,  5  Madd.  47; 
Myler  v.  Fitzpatrick,  6  Madd.  360;  Davis  v.  Spurling,  1  R.  &  M.  64;  Tarn. 
199;  Crisp  v.  Spranger,  Nels.  109;  Saville  y.  Tancred,  3  Swanst.  141; 
Fyler  v.  Fyler,  3  Beav.  550;  Maw  v.  Pearson,  28  Beav.  196;  Lockwood  »'. 
Abdy,  14  Sim.  437;  Ex  parte  Burton,  3  Mont.,  D.  &  De  Gex,  364;  Re 
Bunting,  2  Ad.  &  El.  467. 

«  Fyler  v.  Fyler,  3  Beav.  550;  Att'y-Gen.  v.  Leicester,  7  Beav.  171; 
Hardy  v.  Caly,  33  Beav.  365 ;  Bridgman  v.  Gill,  24  Beav.  302 ;  Portlock 
V.  Gardner,  1  Hare,  606;  Ez  parte  VVoodin.  3  Mont.,  D.  &  De  G.  399; 
Bodenham  v.  Hoskyns,  2  De  G.,  M.  &  G.  903;  Panell  v.  Hurley,  2  CoU. 
241 ;  Alleyne  v.  Darcy,  4  Ired.  Ch.  199,  5  Ired.  Ch.  56. 
326 


CHAP.  VII.]  TRUSTEE   DE   SON   TORT.  [§  247. 

§  246  a.  If  a  vendor  undertakes  to  sell  a  good  title  to  land 
for  a  valuable  consideration,  and  his  title  is  defective,  but  he 
afterwards  obtains  a  perfect  title,  equity  will  compel  him  to 
hold  it  in  trust  for  his  vendee.^  If,  however,  such  vendor 
had  conveyed  the  land  with  full  covenants  of  warranty,  the 
title  which  he  afterwards  obtains  will  enure  for  the  benefit 
of  his  grantee,  and  the  vendor  will  be  estopped  by  his  cove- 
nants from  setting  up  his  after-acquired  title  against  his  ven- 
dee.2  And  if  a  purchaser  of  land  with  notice  of  a  prior  mort- 
gage afterwards  sells  the  same  to  an  innocent  purchaser  for 
its  full  value,  equity  will  compel  him  to  hold  the  proceeds  in 
trust  for  the  mortgagee.'^  So,  if  one  procures  and  puts  on 
record  a  deed  of  land  with  notice  of  a  prior  deed  and  in  fraud 
of  a  prior  purchaser,  equity  will  compel  him  to  hold  the  legal 
title  in  trust  for  the  first  grantee.*  So,  if  a  person  sells  stock, 
and  it  is  conveyed  in  such  a  manner  that  the  conveyance  is 
void  and  the  legal  title  is  still  in  the  vendor,  he  will  hold 
it  in  trust  for  the  actual  vendee,  and  he  may  be  compelled 
to  take  the  title  and  assume  the  burdens.^ 

§  247.  Where  a  person  has  possession  of  title-deeds  or 
other  documents  in  relation  to  property,  and  other  persons 
are  interested  in  the  same  property,  and  claim  title  through 
or  under  the  same  papers,  the  person  having  the  possession 
of  the  papers  is  a  constructive  trustee  for  the  other  persons 
interested  in  the  same  property,  and  a  court  of  equity  will 
compel  him  to  produce  the  deeds  or  papers  at  the  suit  of 
those  claiming  an  interest  in  the  common  property.^ 

1  Clark  V.  Martin,  49  Pa.  St.  299;  Hope  v.  Stone,  10  Minn.  14;  Doyle 
V.  Peerless,  44  Barb.  2o9 ;  Kelley  v.  Jenness,  50  Me.  455;  Cobb  v.  Stew- 
art, 4  Met.  (Ky.)  255;  Dalheguey  n.  Tabor,  22  Cal.  279;  Wasby  v.  Fore- 
man, 30  Cal.  90;  Kane  County  v.  Herrington,  50  111.  232. 

2  Somes  V.  Skinner,  3  Pick.  51;  White  v.  Patten,  24  Pick.  324;  2 
Smith,  Leading  Cases  (4  Amer.  ed.),  550;  Nash  v.  SpoiTord,  8  Met. 
192. 

8  Moshier  v.  Knox  College,  32  III.  155. 

4  Troy  City  P.ank  v.  Wilcox,  24  Wis.  071. 

6  Brown  v.  Black,  L.  R.  15  Eq.  367. 

^  Lewin  on  Trusts,  156,  157  (5th  Lond.  ed.). 

327 


§  247  a.]        TRUSTS  by  equitable  construction,     [chap.  VIT. 

§  247  a.  If  a  person  becomes  surety  for  the  debt  of  an- 
other, and  the  creditor  holds  mortgages  on  other  securities 
from  the  debtor  for  the  same  debt,  the  surety,  if  he  pay  the 
debt,  has  a  right  to  claim  that  the  creditor  shall  hold  the 
securities  in  trust  for  him  ;  in  other  words,  the  surety  upon 
paying  the  debt  is  subrogated  into  the  rights  of  the  original 
creditor  ;i  and  if  an  assignor  receives  payment  for  a  chose  in 
action  which  he  has  assigned,  he  holds  the  proceeds  in  trust 
for  the  assignee.^  So,  if  one  sells  the  property  of  another 
and  deposits  the  money  in  bank  in  his  own  name,  upon  notice 
to  the  bank,  by  the  owner  of  the  property,  of  the  facts,  and  a 
demand  for  the  money,  the  bank  becomes  a  quasi  or  con- 
structive trustee  for  the  true  owner.^ 

^  Garnsey  v.  Gardner,  4  Me.  167. 

2  Post,  §  438 ;  Fortescue  r.  Barnett.  3  Myl.  &  K.  36. 

8  Bank  of  Wellsborough  r.  Baake,  71  Pa.  St.  213;  Arnold  v.  Macungie 
Bank,  71  Pa.  St.  287 ;  Twitchell  v.  Drury,  25  Mich.  393;  Campan  v.  Cam- 
pan,  Id.  127. 


828 


GHAP.  VIII.]  POWERS   THAT   ARE  TRUSTS.  [§  248. 


CHAPTER   VIII. 

TRUSTS   THAT   ARISE   BY   CONSTRUCTION    FROM   POWERS. 

§  248.    The  nature  of  powers  that  imply  a  trust. 

§  249.    Court  will  execute  such  powers  as  trusts. 
§§  2.30,  251.  Instances  of  powers  which  the  court  will  execute  as  trusts. 

§  252.    Instances  of  powers  that  are  not  trusts. 

§  253.  Where  the  power  is  too  uncertain. 

§  254.   The  power  must  be  executed  as  given,  or  it  will  remain  a  trust  to  be  exe- 
cuted by  the  court. 
§§  255, 256.  In  what  manner  the  court  will  execute  a  trust  arising  out  of  a  power, 

§  257.  "Whether  courts  will  distribute  per  stirpes  or  per  capita. 

§  258.  And  whether  to  those  living  at  the  death  of  donor  or  of  the  donee. 

§  248.  Property  is  sometimes  given  to  a  person  with  a 
power  to  dispose  of  it  for  a  particular  purpose,  or  to  a  par- 
ticular class  of  persons,  or  to  certain  persons  to  be  selected 
or  designated  by  the  donee  from  a  particular  class.  If  the 
donee  executes  the  power  and  disposes  of  the  property,  or 
designates  or  selects  the  persons  who  are  to  take  under  the 
gift,  it  goes  as  directed,  and  there  is  no  great  room  for  doubt 
or  question ;  but  if  the  donee  refuses  or  neglects  to  execute 
the  power  it  becomes  a  grave  inquiry  whether  the  persons  in 
whose  favor  the  power  might  have  been  executed  have  any 
interest  in  the  property,  or  any  remedy  for  the  non-exercise 
of  the  power  by  the  first  taker  or  donee.  In  dealing  with 
the  cases  that  have  arisen  upon  these  inquiries,  courts  have 
distributed  powers  into  mere  powers,  and  powers  coupled  with 
a  trust,  or  powers  which  imply  a  trust}  Mere  powers  are 
purely  discretionary  with  the  donee :  he  may  or  may  not  ex- 
ercise or  execute  them  at  his  sole  will  and  pleasure,  and  no 
court  can  compel  or  control  his  discretion,  or  exercise  it  in 
his  stead  and  place,  if  for  any  reason  he  leaves  the  powers 

1  Brown  v.  Higgs,  8  Ves.  574  ;  White  v.  Wilsou,  1  Drew.  298. 

329 


§  248.]  TRUSTS    IMPLIED    FROM    POWERS.  [CHAP.  VIII. 

unexecuted.^  If  the  donee  executes  the  powers,  but  executes 
them  in  a  defective  manner,  courts  may  aid  the  execution 
and  supply  the  defects,  but  they  cannot  exercise  or  execute 
mere  naked  powers  conferred  upon  a  donee.^  It  is  different 
with  powers  coupled  with  a  trust,  or  powers  which  imply  a 
trust.  In  this  class  of  cases  the  power  is  so  given  that  it  is 
considered  a  trust  for  the  benefit  of  other  parties ;  and  when 
the  form  of  the  gift  is  such  that  it  can  be  construed  to  be  a 
tmst,  the  power  becomes  imperative,  and  must  be  executed. 
Courts  will  not  allow  a  clear  trust  to  fail  for  want  of  a  trus- 
tee ;  nor  will  they  allow  a  trust  to  fail  by  reason  of  any  act 
or  omission  of  the  trustee ;  therefore,  courts  will  not  allow  a 
trust  to  fail,  or  to  be  defeated  by  the  refusal  or  neglect  of 
the  trustee  to  execute  a  power,  if  such  power  is  so  given 
that  it  is  reasonably  certain  that  the  donor  intended  that  it 
should  be  exercised.  There  are  mere  powers  and  mere 
trusts.  There  are  also  powers  whicli  the  party  to  whom 
they  are  given  is  intrusted  with  and  required  to  execute. 
Courts  consider  this  last  kind  of  power  to  partake  so  much 
of  the  character  of  a  trust  to  be  executed,  that  they  will  not 
allow  it  to  fail  by  the  failure  of  the  donee  to  execute  it,  but 
will  execute  it  in  the  place  of  the  donee.^      Lord  Hardwicke 

1  Greenough  v.  Welles,  10  Cush.  576;  ElJredge  v.  Heard,  106  Mass. 
582. 

2  Wilkinson  v.  Getty,  13  Iowa,  157;  Arundell  v.  Philpot,  2  Vern.  69; 
Tompkyn  v.  Sandys,  2  P.  Wms.  228  u. ;  Bull  v.  Vardy,  1  Yes.  Jr.  272. 
And  even  if  a  party  intended  to  execute  a  power,  but  is  prevented  by 
sudden  death,  the  court  will  not  execute  the  power.  Pigott  v.  Peurice, 
Cora.  250  ;  Gilb.  Eq.  138;  Sugd.  on  Powers,  392. 

3  Burgess  v.  Wheate,  1  Wm.  Black.  162;  Sugd.  on  Pow.  393-398; 
Lucas  V.  Lockhart,  10  Sm.  &  M.  466;  Harrison  v.  Harrison,  2  Gratt.  1; 
Greenough  v.  Welles,  10  Cush.  576;  Erickson  v.  Willard,  1  N.  H.  217; 
Harding  v.  Glyn,  1  Atk.  4(39;  Cruwys  v.  Colman,  9  Ves.  319;  Forbes  v. 
Ball,  3  Mer.  437;  Witts  v.  Boddington,  3  Bro.  Ch.  95  ;  Walsh  ;;.  Wallin- 
ger,  2  R.  &  Aly.  78  ;  Grieveson  v.  Kersopp,  2  Keen,  654  ;  Jones  v.  Torin, 
6  Sim.  255;  Martin  v.  Swannell,  2  Beav.  249;  Fen  wick  t".  Greenwell,  10 
Beav.  412;  Fordyce  v.  Brydges,  10  Beav.  90;  2  Phill.  497;  Burrough  v. 
Philcox,  5  My.  &  Cr.  73;  Falkner  v.  Wyiiford.  15  L.  J.  Ch.  8;  9  Jur.  1006; 
Penny  v.  Turner,  15  Sim.  368;  2  Pliill.  493;  Alloway  r.  Alloway,  4  Dr.  & 
War.  380;  Salusbury  v.  Denton,  3  K.  &  J.  535;  Joel  v.  Mills,  Id.  474; 

330 


CHAP.  VIII.]  POWERS   THAT   ARE   TRUSTS.  [§  249. 

observed  that  such  powers  ought  rather  to  be  called  trusts 
than  powers.^  In  all  cases  these  powers  or  trusts  must  be 
construed  accordhig  to  the  intention  of  the  parties,  to  be 
gathered  from  the  whole  instrument.^ 

§  249.  In  all  cases  where  parties  have  an  imperative  power 
or  discretion  given  to  them,  and  they  die  in  the  testator's  life- 
time,^ or  decline  the  trust  or  office,*  or  disagree  as  to  the  exe- 

Reid  V.  Reid,  25  Beav.  469 ;  Brown  v.  Higgs,  8  Ves.  574 ;  Babbitt  v.  Bab- 
bitt, 26  N.  J.  Eq.  44.  In  this  case  Lord  Eidou  said,  if  the  power  be  one 
which  it  is  the  duty  of  the  party  to  execute,  made  his  duty  by  the  requisi- 
tion of  the  will,  put  upon  him  as  such  by  the  testator,  who  has  given  hira 
an  interest  extensive  enough  to  enable  him  to  discharge  it,  he  is  a  trustee 
for  the  exercise  of  the  power,  and  not  as  having  a  discretion  whether  he 
will  exercise  it  or  not;  and  the  court  adopts  this  principle  as  to  trusts,  and 
will  not  permit  his  negligence,  accident,  or  other  circumstances  to  disap- 
point tlie  interest  of  those  for  whose  benefit  he  is  called  upon  to  execute 
it.  In  Attorney-General  v.  Downing,  Wilra.  23,  Ld.  Ch.  J.  Wilmot  said, 
as  to  the  objection  that  those  powers  are  personal  to  the  trustees,  and  by 
their  deatli  become  unexecutable,  they  are  not  powers  but  trusts,  and  there 
is  a  very  essential  difference  between  them.  Powers  are  never  imperative  : 
they  leave  the  acts  to  be  done  at  the  will  of  the  party  to  whom  they  are 
given.  7'rusts  are  always  imperative,  and  are  obligatory  upon  the  con- 
science of  the  party  intrusted.  The  court  supplies  the  defective  execution 
of  powers,  but  never  the  non-executio7i  of  them ;  for  they  are  not  meant  to 
be  optional.  But  a  person  who  creates  a  trust  means  it  shall  be  executed 
at  all  events.  The  individuals  named  as  trustees  are  only  the  nominal 
instruments  to  execute  that  intention,  and  if  they  fail,  either  by  death, 
or  by  being  under  disability,  or  by  refusing  to  act,  the  constitution  has 
provided  a  trustee.  Where  no  trustees  are  appointed  at  all,  the  court 
assumes  the  office.  Tliere  is  some  personality  in  every  choice  of  trustees, 
but  this  personality  is  res  unius  cetatis,  and  if  the  trust  cannot  be  executed 
through  the  medium  which  was  in  the  primary  view  of  the  testator,  it  must 
be  executed  through  the  medium  which  the  constitution  has  substituted  in 
his  place.  Brook  v.  Brook,  3  Sm.  &  Gif.  280;  Withers  v.  Yeadon,  1  Rich 
Ch.  324;  Miller  v.  Meetch,  8  Barr,  417;  Gibbs  v.  Marsh,  2  Met.  243; 
Grimke  v.  Grimke,  1  Des.  Eq.  375  n. 

^  Godolphin  v.  Godolphin,  1  Ves.  23. 

2  Kerr  v.  Verner,  66  Pa    St.  326;  Guion  v.  Fickett,  42  Miss.  77. 

8  Maberly  v.  Turton,  14  Ves.  499;  Attorney-General  v.  Downing, 
Wilm.  7;  Amb.  550;  Attorney-General  v.  Hickman,  2  Eq.  Ca.  Ab.  193. 

*  Izod  v.  Izod,  32  Beav.  242;  Doyley  v.  Attorney-General,  2  Eq.  Ca. 
Ab.  194;  Gude  v.  Worthington,  3  De  G.  &  Sm.  389. 

331 


§  250.]  TRUSTS   IMPLIED    FROM   POWERS.  [CHAP.  VIII. 

cution  of  it,^  or  do  not  execute  it  before  their  death,^  or  if 
from  any  other  cu-cumstancc  ^  the  exercise  of  the  power  by 
the  party  intrusted  with  it  becomes  impossible,  the  court 
will  imply  a  trust,  and  will  put  itself  in  the  place  of  the  trus- 
tee, and  will  exercise  the  power  by  the  most  equitable  rule. 
And  the  court  will  act  retrospectively  in  executing  these 
powers  as  quasi  trusts ;  *  and  although  there  may  be  great 
difficulties  and  impracticabilities  in  the  way,  yet  the  court 
will  exercise  the  power  and  enforce  the  trust :  ^  for,  if  the 
trust  or  power  can  by  any  possibility  be  exercised  by  the 
court,  the  non-execution  by  the  party  intrusted  shall  not 
prejudice  the  party  beneficially  interested,  or  the  cestui  que 
trust.^  Thus  a  power  to  sell  given  to  tenant  for  life  as  cestui 
que  trust  may  be  executed  after  his  death  by  trustees  under 
a  decree  of  a  court  of  equity.' 

§  250.  In  some  cases  the  donor  makes  a  direct  gift  to  one 
party,  but  subjects  the  gift  to  the  discretion  or  power  of  some 
previous  taker  or  other  party  ;  as  if  a  donor  limit  a  fund 
"  upon  trust  for  the  children  of  A.  as  B.  shall  appoint."  In 
such  case  the  children  of  A.  take  a  vested  interest  in  the  sub- 
ject of  the  gift,  liable  to  be  divested  by  the  exercise  of  the 

1  Wainwright  v.  Waterman,  1  Ves.  Jr.  311;  Moseley  v.  Moseley,  t. 
Finch,  53. 

2  Hardin?  v.  Glyn,  1  Atk.  469:  Croft  v.  Adam,  12  Sim.  639;  Hewett  y. 
Hewett,  2  Eden,  3o2;  Flanders  c.  Clark,  1  Ves.  10;  Grievesou  v.  Kirsopp, 
2  Keen,  65-J. 

8  Attorney-General  v.  Stephens,  3  M.  &  K.  347. 

■♦  Maberly  i-.  Turton,  14  Ves.  499 ;  Edwards  v.  Grove,  2  De  G.,  F.  &  J. 
222. 

^  Pierson  r.  Garnet,  1  Bro.  Ch.  46. 

^  Brown  v.  Higgs,  5  Ves.  505. 

^  Faulkner  v.  Davis,  18  Grat.  651.  Where  the  discretionary  power 
is  such  as  would  not  belong  to  the  court  by  virtue  of  its  jurisdiction  over 
the  subject-matter,  independent  of  the  will,  as  for  instance  a  power  of 
selecting  the  beneficiaries  of  testator's  bounty,  the  court  will  not  execute 
it,  and  under  the  rules  cannot  confer  it  upon  an  appointee.  In  such 
cases  it  is  executed  equitably  by  distributing  equally  among  the  distribu- 
tees. But  where  the  discretion  applies  to  some  ministerial  act,  as  leasing 
or  selling  land,  felling  timber,  and  the  like,  the  court  will  exercise  control. 
Druid  Park  Heights  Co.  v.  Oettinger,  53  Md.  63. 

332 


CHAP.  VIII.]  POWERS    THAT    ARE    TRUSTS.  [§  250. 

power  by  B.  Tlierefore,  on  the  failure  of  the  power,  the  chil- 
dren of  A.  become  as  absolutely  entitled  as  if  the  discretion 
or  power  had  never  been  given  to  B.^  But  while  the  exercise 
of  the  power  is  possible,  the  donee  of  it  may  exercise  his  dis- 
cretion in  favor  of  any  that  he  may  select ;  he  may  select 
those  who  are  living  at  the  donor's  death,  or  those  living  at 
his  own  death.2  In  other  cases  an  estate  is  vested  in  a  donee 
"  upon  trust  to  dispose  of  it  among  the  children  of  A."  Here 
the  children  of  A.  take  nothing  directly  by  way  of  the  gift, 
but  their  interest  must  come  to  them  through  the  medium 
of  the  power.^  If  the  trust  is  to  dispose  of  it  equally  among 
the  children  of  A.,  the  bequest,  though  in  form  a  power,  is 
equivalent  to  a  simple  gift.*  If  the  donee  may  distribute  or 
dispose  of  it  unequally  among  the  children  of  A.,  and  no  dis- 
tribution or  disposition  is  made  by  him,  the  court  will  execute 
the  power  and  distribute  the  fund  equally  among  the  objects 
of  it.^  In  other  cases  the  property  is  vested  in  a  donee  with  a 
discretion  as  to  the  objects  to  which,  and  also  as  to  the  pro- 
portions in  which,  it  is  to  be  given  over.  Of  course  the  first 
question  to  be  determined  in  all  such  cases  is,  Did  the  donor 
intend  to  give  a  mere  power,  or  did  he  create  a  trust,  or  will 
the  court  imply  a  trust  ?  Lord  Cottenham  stated  the  general 
rule  deduced  from  the  cases  as  follows  :  "  When  there  ap- 
pears a  general  intention  in  favor  of  a  class,  and  a  particular 
intention  in  favor  of  individuals  of  a  class  to  be  selected  by 
another  person,  and  the  particular  intention  fails  from  that 
selection  not  being  made,  the  court  will  carry  into  effect  the 

^  Davy  r.  Hooper,  2  Vern.  665;  Jones  v.  Torin,  6  Sim.  255;  Fenwick 
r.  Greenwell,  lOBeav.  412;  Hockley  v.  Mawbey,  1  Ves.  Jr.  143,  149,  150; 
Madoc  V.  Jack.son,  2  Bro.  Ch.  588;  Falkner  v.  Wynford,  9  Jar.  1006; 
Rhett  (.'.  Mason,  18  Grat.  541;  Carson  v.  Carson,  Phill.  (N.  C.)  Eq.  57. 

2  Lambert  v.  Thwaites,  Law  R.  2  Eq.  151;  Woodcock  v.  Renneck,  4 
Beav.  190;  affirmed,  1  Phill.  72.  »  Ward  v.  Morgan,  5  Cold.  407. 

4  Rayner  v.  Mowbray,  3  Bro.  Ch.  234;  Phillips  v.  Garth,  Id.  64. 

6  Hands  v.  Hands,  1  T.  R.  437,  note;  Pope  v.  Whitcomb,  3  Mer.  698; 
Re  White's  Trnst,  1  Johns.  656;  Finch  v.  HoUingsworth,  21  Beav.  112; 
Brown  v.  Pocock,  6  Sim.  257;  Grieveson  v.  Kirsopp,  2  Keen,  656;  Walcli 
V.  Wallinger,  2  R  &  M.  78;  Tam.  425;  1  Rev.  Stat.  N.  Y.  734,  §  100; 
Dominick  v.  Sayre,  3  Sandf.  555;  Hoag  v.  Kenney,  25  Barb.  396. 

3-33 


§  251.]  TRUSTS   IMPLIED    FROM   POWERS.  [CHAP.  VIII. 

general  intention  in  favor  of  the  class.  When  such  an  inten- 
tion appears,  the  case  arises,  as  stated  by  Lord  Eldon  in 
Brown  V.  Higgs,!  of  the  power  being  so  given  as  to  make  it 
the  duty  of  the  donee  to  execute  it ;  and,  in  such  case,  the 
court  will  not  permit  the  objects  of  the  power  to  suffer  by 
the  negligence  or  conduct  of  the  donee,  but  fastens  upon  the 
property  a  trust  for  their  benefit."  ^ 

§  251.  Thus,  where  a  testator  gave  an  estate  "  to  A.  upon 
trust  (subject  to  certain  charges),  to  employ  the  remainder 
of  the  rent  for  such  children  of  B.  as  A.  should  think  most 
deserving,  and  that  will  make  the  best  use  of  it,  or  for  the 
children  of  his  nephew,  C,  if  any  there  are,  or  shall  be," 
and  A.  died  in  the  testator's  lifetime,  it  was  held  to  be  a 
trust  in  favor  of  all  the  children  of  B.  and  C.^  So  where 
a  testator  directed  certain  property  to  remain  until  certain 
contingencies,  and  then  gave  life-estates  in  the  property  to 
two  of  his  children,  with  remainder  to  their  issue,  and  declared 
that  in  case  his  two  cliildren  had  no  issue,  the  same  should 
be  disposed  of  by  the  survivor  by  will  among  his  nephews 
and  nieces  or  their  children,  or  cither  of  them,  or  to  as  many 
of  them  as  his  surviving  child  should  think  proper,  it  was 
held  to  be  a  trust  in  favor  of  the  nephews  and  nieces  and 
their  children,  subject  to  the  power  of  selection  and  distribu- 
tion by  the  surviving  child.^  So  where  a  testator  gave  to  B. 
in  tail,  and  if  she  had  no  issue,  she  was  to  settle  the  estate 
upon  such  person  as  she  thought  fit  by  will, "confiding"  in  her 
not  to  transfer  the  estate  from  his  nearest  family,  it  was  held 
to  be  a  trust  for  the  heir  who  was  the  nearest  famil}^  or  rela- 
tion within  the  meaning  of  the  will.^     And  where  a  testator 

1  8  Ves.  574. 

2  Burrough  v.  Philcox,  5  My.  &  Cr.  72;  Witts  v.  Boddington,  3  Bro. 
Ch.  95;  5  Ves.  503;  Harding  v.  Glyn,  1  Atk.  469. 

3  Brown  v.  Higgs,  4  Ves.  708;  5  Ves.  495;  8  Ves.  574;  18  Ves.  192; 
2  Sugd.  on  Pow.  176;  Longmore  r.  Broom,  7  Ves.  124;  Jones  v.  Torin, 
6  Sim.  2."j5;  Prevost  v.  Clark,  2  Madd.  458;  Penny  v.  Turner,  2  Phill.  47:3; 
Fordyce  v.  Bridges,  Id.  497 ;  White  in  re,  John.  658. 

4  Burrough  v.  Philcox,  5  My.  &  Cr.  73. 
^  Griffiths  V.  Evans,  5  Beav.  241. 

334 


CHAP.  VIII.]  POWERS   THAT   ARE   TRUSTS.  [§  251. 

gave  his  property  to  his  son  in  trust  to  apply  the  income  to 
the  use  of  himself  and  family,  and  to  give  by  deed  or  will  all 
beyond  what  he  should  so  apply,  unto  all  or  any  child  or  chil- 
dren of  his  own  in  such  proportions  and  in  such  manner  as 
he  should  see  fit,  and  his  son  died  having  devised  the  prop- 
erty to  his  wife  with  directions  to  his  executors  to  act  under 
the  will  of  his  father,  it  was  held  to  be  a  trust  coupled  with 
a  power  to  appoint  at  his  discretion  among  his  children,  that 
the  power  could  not  be  delegated,  that  the  son's  will  was  not 
an  execution  of  the  power,  and  that  his  children  took  equally 
under  their  grandfather's  will.^  Where  a  man  gave  his  prop- 
erty "  wholly  "  to  his  wife  to  be  disposed  of  by  her  and  di- 
vided among  his  children  at  her  discretion,  the  children  took 
under  the  will  and  not  as  her  heirs,  in  default  of  any  distribu- 
tion by  her.2  And  where  a  testator  gave  his  estate  to  his 
wife  during  her  life,  and  gave  all  the  remainder  to  his  two 
brothers  A.  and  B.  who  were  also  his  executors,  "  with  full 
confidence  that  they  will  dispose  of  such  residue  among  our 
brothers  and  sisters  and  their  children,  as  they  shall  judge 
shall  be  most  in  need  of  the  same,  this  to  be  done  according 
to  the  best  of  their  discretion ; "  it  was  held  to  be  a  trust  for 
the  brothers  and  sisters  and  their  children,  to  the  exclusion 
of  A.  and  B.  and  their  children ;  and  the  court  executed  the 
trust,  and  exercised  the  powers.^  Where  a  testator  gave  his 
wife  certain  property,  and  desired  her  "  to  give  the  same  unto 
and  among  such  of  the  testator's  relations  as  she  should  think 
most  deserving  and  approve  of,"  after  the  death  of  the  wife 
without  appointing,  the  court  decreed  a  trust,  and  divided 
the  property  equally  among  the  relations.*  Where  a  tenant 
for  life  "  is  desired  to  give  it  among  his  children  as  he  should 
think  fit,"  ^  or  the  "  residue  is  to  be  disposed  of  among  her 
children  as  she  shall  think  proper,"  ^  or  where  after  the  death 

1  Withers  v.  Yeadon,  1  Rich.  Eq.  324. 

2  Collins  V.  Carlisle,  7  B.  Mon.  14;  Russell  v.  Kennedy,  3  Brews.  438. 

8  Bull  V.  Bull,  8  Conn.  47;  see  Gilbert  v.  Chapin,  19  Conn.  351 ;  Har- 
per V.  Phelps,  21  Conn  257. 

*  Harding  v.  Glyn,  1  Atk.  469.  «  2  Sugd.  on  Pow.  181. 

^  Kemp  i;.  Kemp,  5  Ves.  849. 

335 


§  252.]  TRUSTS   IMPLIED   FROM   POWERS.  [CHAP.  VIII. 

of  testator's  wife  the  gift  "  is  to  such  of  his  grandchildren  as 
she  sliould  appoint,"  ^  it  was  held  to  be  a  trust  for  selection 
or  distribution,  and  in  default  of  the  exercise  of  the  power 
the  court  enforced  it  as  a  trust  and  distributed  it  equally 
among  all  the  objects  named.^  In  such  cases  the  word  "  chil- 
dren "  will  embrace  grandchildren  if  such  appears  to  be  tlie 
general  intent  of  the  donor.^ 

§  252.  But  where  a  testator  empowered  his  wife  to  give 
away  XIOOO  of  his  estate  at  her  death,  £100  to  A.,  £100  to 
B.,  and  the  rest  by  her  will,  and  she  died  without  having 
executed  the  power,  it  was  held  to  be  a  mere  power,  and  no 
trust,  and  the  court  refused  to  carry  it  into  effect.*  So  where 
a  testator  gave  £30,000  to  his  wife  for  life,  to  be  distributed 
at  her  decease  to  and  amongst  such  of  his  children  and  in 
>such  manner  and  proportion  as  she  should  appoint,  it  was 
held  to  be  a  mere  power  which  the  court  could  not  execute 
in  default  of  an  appointment  by  her.^ 

1  Witts  V.  Boddington,  3  Bro.  Ch.  95. 

2  Whitehurst  v.  Barker,  2  Ir.  Ch.  292;  Fowler  v.  Hunter,  2  Y.  &  J. 
506;  Longmore  v.  Brown,  7  Ves.  124;  Salusbury  v.  Denton,  3  Kay  &  J. 
529;  Kennedy  v.  Kingston,  2  J.  &  W.  431;  Davy  v.  Hooper,  2  Vern.  665; 
Maddison  i'.  Andrew,  1  Ves.  57;  Hockley  v.  Mawbey,  1  Ves.  Jr.  143; 
Croft  V.  Adam,  12  Sim.  639;  Brown  v.  Pocock,  6  Sim.  257;  McNeilledge 
V.  Galbrath,  8  Serg.  &  R.  43;  Harrison  v.  Harrison,  2  Grat.  1;  Frazier  v. 
Frazier,  2  Leigh,  642;  Cruse  v.  McKee,  2  Head,  1;  Thompson  v.  Norris, 
2  N.  J.  Eq.  489;  Jecko  v.  Lansing,  45  Mo.  167. 

3  Ingraham  v.  Meade,  3  Wall.  Jr.  32. 

*  Bull  V.  Vardy,  1  Ves.  Jr.  279;  In  re  Eddowes,  1  Dr.  &  Sm.  395. 

6  Marlborough  v.  Godolphin,  2  Ves.  61;  5  Ves.  Jr.  506.  In  this  case 
Lord  Hardwicke  drew  a  distinction  between  a  gift  "  amongst  my  children 
as  A.  should  appoint,"  which  he  considered  a  trust,  and  a  gift  "among 
such  of  my  children  as  A.  should  appoint,"  which  he  considered  a  mere 
power.  This  distinction,  however,  is  not  now  acted  upon.  Crossling  v. 
Crossling,  2  Cox,  396,  is  to  the  same  effect  as  Marlborough  v.  Godolphin. 
These  cases  have  not  been  expressly  overruled,  but  they  have  not  been 
followed  in  the  later  cases,  and  if  they  were  to  come  before  the  courts  at 
the  present  day,  it  is  probable  that  they  would  be  held  to  be  implied 
trusts,  and  not  mere  powers,  as  courts  will,  if  possible,  construe  such  be- 
quests into  gifts  to  the  parties  to  be  benefited.  Hill  on  Trust.  69 ;  2  Sugd. 
on  Powers,  181 ;  Brown  v.  Pocock,  6  Sim.  257. 

336 


CHAP.  VIII.]  POWERS   THAT   ARE   TRUSTS.  [§  254. 

§  253.  If  the  power  to  be  executed  is  so  uncertain  as  to  its 
objects,  that  a  court  of  equity  cannot  say  what  particular 
person  or  persons  or  class  of  persons  are  to  take  an  interest 
under  it  as  a  trust,  it  will  be  considered  a  mere  power  which 
cannot  be  carried  into  effect ;  ^  or  if  the  subject-matter  to  be 
affected  by  the  power  is  too  uncertain  to  be  dealt  with  by  the 
court,  a  trust  will  not  be  implied.^  And  where  there  is  an 
express  limitation  of  the  property  over  in  case  the  power  is 
not  executed,  of  course  no  trust  can  be  implied.^ 

§  254.  The  general  rule  is,  that  the  power  given  must  be 
strictly  executed  as  given,  or  it  will  remain  as  a  trust  for  the 
person  or  class  in  whose  favor  it  is  given ;  thus,  if  the  donee 
is  to  dispose  of  the  property  to  such  persons  of  a  particular 
class  as  she  shall  select  in  a  last  will  and  testament,  and  the 
disposition  is  made  by  a  deed,  the  power  is  not  executed,  and 
it  will  be  construed  into  a  trust  for  the  whole  class,  or  will 
go  over,  if  there  is  a  gift  over  in  default  of  an  appointment 
or  execution  of  the  power.^  So  if  the  power  is  attempted  to 
be  executed  in  favor  of  a  person  or  a  class,  outside  of  the 
persons  or  classes  in  whose  favor  it  is  given,  the  execution 
will  be  bad,  and  it  will  remain  as  a  trust  for  all  those  in  whose 
favor  it  was  given.^  As  if  the  power  is  to  distribute  among 
children,  it    cannot    be    executed    by    a    distribution   among 

1  Stubbs  V.  Sargon,  2  Keen,  255;  Omraanny  v.  Butcher,  1  T.  &  R.  260; 
Wheeler  w.  Smith,  9  Mow.  79;  Robinson  v.  Allen,  11  Grat.  785;  Harper 
V.  Phelps,  21  Conn.  257;  Thompson  v.  McKissick,  3  Humph.  631;  Ellis 
V.  Ellis,  15  Ala.  296. 

2  Gibbs  V.  Marsh,  2  Met.  243. 

3  Pritchard  v.  Juinchant,  Amb.  126;  5  Ves.  596,  n. ;  2  Sugd.  on  Pow. 
183;  Lines  v.  Burden,  5  Fla.  51. 

4  Moore  v.  Dimond,  5  R.  I.  121;  Benthara  v.  Smith,  1  Cheev.  33  (2d 
part);  Haslen  v.  Kean,  2  Taylor,  279;  Christy  v.  Pulliam,  17  111.  59; 
Balteel  v.  Plumer,  L.  R.  8  Eq.  585;  Garth  v.  Townsend,  L.  R.  7  Eq.  220; 
Thacker  v.  Kay,  L.  R.  8  Eq.  408. 

5  Jarnagin  v.  Conway,  2  Hutnph.  50 ;  Horwitz  v.  Norris,  49  Pa.  St. 
219;  Knight  v.  Garborough,  Gilmer.  27;  Little  v.  Bennett,  5  Jones,  Eq. 
156;  Lippincott  v.  Ridgway,  3  Stockt.  526;  Varrell  v.  Wendell,  20  N.  H. 
431 ;  Wickesham  v.  Savage,  58  Pa.  St.  219;  Tn  re  Gratwick's  Trust,  L.  R. 
1  Eq.  117;  Carson  v.  Carson,  Phill.  Eq.  (N.  C.)  57. 

VOL.  1-22  337 


§  255.]  TRUSTS   IMPLIED    FROM   POWERS.  [CHAP.  VIII. 

grandchildren.^  Where  the  power  is  to  distribute  among  a 
certain  class,  something  must  be  given  to  each  one  or  the 
execution  of  the  power  is  bad.^  But  the  proportion  is  left 
to  the  trustee.^  And  the  donee  of  the  power  cannot  execute 
it  in  favor  of  himself  or  his  family,  unless  the  terms  of  the 
power  specially  authorize  him  so  to  do.'*  Nor  can  he  delegate 
the  power  or  the  execution  of  it  to  others.^  It  must  be  exe- 
cuted within  the  time  named  in  the  instrument,^  and  if  the 
appointment  is  to  be  made  at  a  person's  decease,  it  must  be 
by  will.^  It  must  also  be  executed  for  the  precise  purpose 
declared,  and  when  the  purpose  becomes  wholly  unattainable 
the  power  ceases.^ 

§  255.  Generally,  if  the  power  is  left  unexecuted  by  the 
donee,  the  court  will  execute  it  as  a  trust,  by  dividing  the 
fund  equally  among  the  objects  or  persons  in  favor  of  whom 
it  was  given,  or  from  whom  the  selection  might  have  been 
made,  on  the  ground  that  equality  is  equity.^  But  if  the  do- 
nor of  the  power  lays  down  any  rule  by  which  the  donee  or 
trustee  is  to  be  governed  in   his  selection  and  distribution 

1  Horwitz  V.  Norris,  49  Pa.  St.  219;  Churchill  v.  Churchill,  L.  R.  5 
Eq.  44;  Moriarty  v.  Martin,  3  Ir.  Ch.  26.     . 

2  Ibid.;  Lippincott  v.  Ridgway,  2  Stockt.  164;  3  Id.  526;  Booth??. 
Alington,  39  Eng.  L.  &  Eq.  2.50.  It  seeras  that  this  is  not  the  rule  in 
Pennsylvania.     Graeff  v.  De  Turk,  44  Pa.  St.  527. 

3  Portsmouth  v.  Shackford,  46  N.  H.  423. 

*  Bostick  V.  Winton,  1  Sneed,  524;  Cruse  v.  McKee,  2  Head,  1;  Holt 
V.  Hogan,  5  Jones,  Eq.  82;  Bull  v.  Bull,  8  Conn.  47;  Cooper  v.  Cooper, 
L.  R.  8  Eq.  312. 

5  Singleton  v.  Scott,  11  Iowa,  589;  Haslen  v.  Kean,  2  Taylor,  279; 
Withers  v.  Yeadon,  1  Rich.  Eq.  324;  Carr  v.  Atkinson,  L.  R.  14  Eq.  400; 
Webb  V.  Sadler,  L.  R.  14  Eq.  533. 

6  Cooper  V.  Martin,  L.  R.  3  Eq.  47. 

"^  Freeland  v.  Pearson,  L.  R.  3  Eq.  658. 

8  Hetzel  V.  Hetzel,  69  N.  Y.  1 ;  Brown  v.  Meigs,  11  Hun  (N.  Y.),  203. 

^  Doyley  17.  Attorney-General,  2  Eq.  Ca.  Ab.  195  ;  Longmore  v.  Broom, 
7  Ves.  124;  Salusbury  v.  Denton,  3  K.  &  J.  403;  Izod  v.  Izod,  32  Beav. 
249;  Gray  v.  Gray,  13  Jr.  Ch.  404;  Fordyce  v.  Brydges,  2  Phill.  497; 
Penny  v.  Turner,  Id.  493,  Whithurst  v.  Ilarker,  2  Ir.  Ch.  492  ;  Kennedy 
V.  Kingston,  2  J.  &  W.  431;  Frazier  v.  Frazier,  2  Leigh,  642;  Cruse  t'. 
McKee,  2  Head,  1;  Davy  v.  Hooper,  2  Yern.  665. 
338 


CHAP.  VIII.]       HOW   THE   COURT    WILL    EXECUTE   THEM.  [§  255. 

of  the  fund,  it  is  said  the  court  will  place  itself  in  the  posi- 
tion of  the  trustee.  If  the  discretion  of  the  trustee  is  to  be 
founded  upon,  or  measured  by,  a  state  of  facts  which  the 
court  can  inquire  into  and  apply  as  effectually  as  a  private 
person  could,  it  "  can  look  with  the  eyes  of  the  trustee,"  and 
can  substitute  its  own  judgment  for  that  of  the  individual. 
Lord  Hardwicke  said  in  a  case  before  him,  "  Here  a  rule  is 
laid  down  ;  the  trustees  are  to  judge  of  the  occasions  and 
necessities  of  the  family ;  the  court  can  judge  of  such  neces- 
sity ;  that  is  a  judgment  to  be  made  from  existing  facts,  so 
that  the  court  can  make  the  judgment  as  well  as  the  trustee, 
and,  when  informed  by  evidence  of  the  necessity,  can  judge 
what  is  equitable  and  just  on  this  necessity  ;"  and  his  Lord- 
ship referred  the  case  to  a  master  to  report  the  facts,  and 
decreed  a  distribution  according  to  the  necessities  found.^ 
This  doctrine  has  been  acted  upon  in  similar  cases.^  In 
others,  the  courts  have  said  that  it  was  "  impossible  to  dis- 
tinguish between  degrees  of  poverty,"  and  that  they  would 
not  attempt  to  apply  the  discretion  given  to  the  donee  of  the 
power,  but  would  divide  the  fund  equally.^  This  conflict  of 
authority  leaves  the  question  open  for  further  discussion.  It 
would  seem  that  there  is  no  impossibility  in  the  nature  of 
things  "  in  distinguishing  between  degrees  of  poverty,"  or  in 
deciding  what  class  of  persons  or  relations  come  within  the 
description,  and  should  take  under  the  gift  of  the  donor. 
Lord  Hardwicke's  observations  are  just,  and  can  be  acted 
upon  by  courts.  It  is  not  so  much  a  question  whether  courts 
of  equity  can  exercise  the  discretion  given  to  the  trustee,  as 
whether  it  is  consistent  with  the  dignity  of  courts  to  inquire 
into  the  relative  necessities  of  a  testator's  relations,  or  whether 
they  have  the  -time  to  enter  into  such  inquiries.  So  far  as  the 
dignity  of  courts  is  concerned,  they  may  well  remember  that 

1  Gower  v.  Mainwaring,  2  Ves.  87.     Mr.  Belt's  edition  has  a  misprint, 
the  court  cannot  judge. 

2  Liley  v.  Hey,  1  Hare,  .'iSl;  Hewett  v.  Hewett,  2  Eden,  332;  Maberly 
V.  Turton,  14  Ves.  499;  Bull  v.  Bull,  8  Conn.  48. 

8  McNeilledge  v.  Galbrath,  8  Serg.  &  R.  43;   Harrison  v.  Harrison,  2 
Grat.  1;  Withers  v.  Yeadnn,  1  Rich.  Ch.  324. 

339 


§  256.]  TRUSTS  IMPLIED    FROM   POWERS.  [CHAP.  VTII. 

they  are  created  to  administer  justice  and  equity  to  the  people, 
and  that  no  inquiries  or  decrees  that  can  be  successfully 
made  are  inconsistent  with  their  position  or  duties.^ 

§  256.  If  the  donee  of  the  power  or  trustee  is  to  select  from 
the  donor's  relations  those  to  whom  he  is  to  give  the  property, 
in  the  execution  of  the  power  he  may  select  from  the  whole 
circle  of  relations,  whether  near  or  distant ;  ^  and  he  may  ex- 
clude some  ;  ^  but  if  the  power  is  to  distribute  to  the  donor's 
relations,  then  the  donee  must  confine  himself  to  the  relations 
that  are  so  near  that  they  would  take  under  the  statute  of  dis- 
tributions.* Courts  have  adopted  the  rule  of  the  statute  of 
distributions  as  a  convenient  rule  in  such  cases,  to  prevent 
such  gifts  from  being  void  for  uncertainty.  If  the  power  de- 
volves upon  the  court  as  a  trust,  whether  it  is  one  of  selection 
or  distribution,  the  court  will  act  upon  the  rule  of  the  statute 
of  distributions,^  unless  the  donor  has  himself  established 
some  rule  of  selection  or  distribution  which  the  court  can  act 
upon.^     And  the  same  rule  applies  if  the  donor  uses  the  word 

*  Upon  the  general  subject  of  bequests  to  poor  or  necessitous  relations, 
see  Attorney-General  v.  Buckland,  1  Ves.  231 ;  Amb.  71 ;  Anon.  1  P.  Wms. 
327;  Widmore  v.  Woodroffe,  Amb.  636;  Brunsden  v.  Woolredge,  Id.  507; 
Mahon  v.  Savage,  1  Sell.  &  Lef.  Ill;  Green  v.  Howard,  1  Bro.  Ch.  33. 

2  Grant  v.  Lynham.  4  Russ.  292;  Brown  r.  Higgs,  5  Ves.  501,-  Cruwys 
V.  Colman,  9  Ves.  324;  Swift  v.  Gregson,  1  T.  R.  435,  note  f ;  Salusbury 
V.  Denton,  3  K.  &  J.  536;  Supple  v.  Lowson,  Amb.  729;  Harding  v.  Glyn, 

1  Atk.  469;  Mahon  v.  Savage,  1  Sch.  &  Lef.  Ill;  Ruling  r.  Farrer,  9 
R.  I.  410;  Brunsden  v.  Woolredge,  Amb.  507,  seems  inconsistent  with  the 
other  authorities. 

3  Ingraham  v.  Meade,  3  Wall.  Jr.  32. 

4  Clapton  V.  Buhner,  10  Sim.  426:  5  My.  &  Cr.  108;  Attorney-General 
V.  Price,  17  Ves.  373,  note  a;  Isaac  v.  Defriez,  Amb.  595;  Carr  v.  Bedford, 

2  Ch.  R.  146  ;  Pope  v.  Whitcombe,  3  Mer.  437  ;  In  re  Jeafferson's  Trusts, 
L.  R.  2  Eq.  276;  Forbes  v.  Ball,  3  Mer.  437.  This  case  seems  inconsis- 
tent, but  the  question  was  whether  it  was  a  power  or  a  trust,  and  not 
whether  the  authority  was  exceeded. 

5  Bennett  v.  Honywood,  Amb.  708;  Hutchinson  r.  Hutchin.son,  13  Ir. 
Eq.  332 ;  Gough  v.  Bult,  16  Sim.  45;  Cowper  v.  Mantell,  22  Beav.  231. 

^  Ibid. ;  or  unless  the  gift  is  in  some  sense  a  charity.    White  v.  White, 
7  Ves.  423;  Mahon  v.  Savage.  1  Sch.  &  Lef.  Ill  ;  Attorney-General  o. 
Price,  17  Ves.  371 ;  Isaac  v.  Defriez,  Id.  373,  note  a. 
340 


CHAP.  VIII.]       HOW   THE   COURT   WILL   EXECUTE   THEM.  [§  257. 

family.^  A  gift  to  nearest  relations  or  next  of  kin  must  be 
administered  in  the  same  way.^  But  it  is  said  that  a  power 
of  selection  will  be  implied  in  the  donee  in  the  case  of  rela- 
tions, where  it  would  not  have  been  implied  in  the  case  of 
children.^  A  power  to  an  unmarried  woman  to  appoint  to 
her  family  or  next  of  kin  may  extend  to  any  relative,^  and 
such  power  may  be  executed  after  coverture.^ 

§  257.  Intimately  connected  with  this  subject  is  the  inquiry 
whether  courts  will  execute  the  power  of  distribution  among 
the  persons  intended,  by  distributing  per  capita  or  per  stirpes. 
Upon  this  matter  it  is  to  be  observed  that  courts  have  adopted 
the  statute  of  distributions  as  a  convenient  rule  to  point  out 
the  relations  intended  by  a  donor,  when  he  uses  that  word  in 
a  gift.  The  only  reason  for  adopting  the  rule  was  to  prevent 
the  gift  from  failing  for  uncertainty.  The  rule  is  used  to  point 
out  the  persons  intended  to  take,  but  the  terms  of  the  gift  are 
used  to  point  out  the  proportions.  If,  therefore,  there  is  no 
rule  in  the  gift  which  can  apply  to  determine  the  proportions, 
the  court  will  make  the  distribution  per  capita.,  and  everybody 
within  the  rule  will  take  equally  as  tenants  in  common.^  But 
if  the  gift  is  to  the  next  of  kin  of  the  donor,  it  will  be  confined 
to  the  nearest  relations  ;  and  those  who  would  take  by  repre- 
sentation under  the  statute  of  distributions  will  be  excluded 
if  there  are  relations  a  degree  nearer.'  If  the  gift  is  to  "  my 
surviving  nephews  and  nieces  "  after  paying  certain  legacies 

^  Cruwys  v.  Colraan,  9  Ves.  319 ;  Grant  v.  Lynhara,  4  Russ.  297. 

2  Edge  V.  Salisbury,  Amb.  70;  Goodinge  v.  Goodinge,  1  Ves.  231. 

3  Spring  V.  Biles,  1  T.  R.  435,  note  f ;  Mahon  v.  Savage,  1  Sch.  &  Lef. 
Ill ;  Saliisbury  v.  Denton,  3  K.  &  J.  536;  Pope  v.  Whitcombe,  3  Mer.  689. 

*  Snow  V.  Teed,  L.  R.  9  Eq.  622. 

6  Wood  V.  Wood,  L.  R.  10  Eq.  220. 

6  Walker  v.  Maunde,  19  Ves.  427;  Thomas  v.  Hole,  Ca.  t.  Talb.  251 ; 
Phillips  n.  Garth,  3  I^ro.  Ch.  64;  Stamp  v.  Cooke,  1  Cox,  326;  Hinckley 
V.  Maclaerns,  1  Myl.  &  K  27;  Withy  r.  Mangles,  4  Beav.  358;  10  CI.  & 
Fin.  215;  Green  v.  Howard,  1  Bro.  Ch.  33;  Pope  y.  Whitcombe,  3  Mer. 
689;  Rayner  v.  Mowbray,  3  Bro.  Ch.  234;  De  Laurencel  v.  De  Boom,  67 
Cal.  362. 

•^  Elmsley  v.  Young,  2  Myl.  &  K.  780;  Withy  v.  Mangles,  4  Beav.  358; 
10  CI.  &  Fin.  21.5. 

341 


§  258.]  TRUSTS   IMPLIED    FROM   POWERS.  [CHAP.  VIII. 

and  the  termination  of  certain  life  estates,  the  representatives 
of  a  nephew  who  survived  the  testator,  but  died  before  the 
time  for  distribution,  have  no  share.^  If  the  fund  is  left  for 
the  "  maintenance  and  education "  of  two  children  named, 
each  will  share  equally  without  regard  to  their  differing 
needs.2  If  the  subject-matter  of  the  gift  is  incapable  of  di- 
vision, and  is  to  be  bestowed  upon  some  one  of  a  class  to  be 
selected  by  the  donee,  and  no  selection  is  made,  the  court  will 
notwithstanding  execute  the  power  as  a  trust,  if  by  any  pos- 
sibility it  can  be  done.^ 

§  258.  Another  difficult  question  which  courts  must  decide 
when  they  are  called  upon  to  execute  these  powers  or  trusts, 
is,  whether  the  fund  shall  be  distributed  to  the  parties  in 
interest  living  at  the  donor's  death,  or  to  those  living  at  the 
donee's  death.  Upon  this  matter  it  has  been  determined  that 
when  it  appears  that  the  donee  is  to  have  his  whole  life  to 
make  the  selection  or  distribution,  or  if  the  donee  is  to  have 
the  use  of  the  fund  for  his  life,  then  the  court  will  distribute  it 
to  the  parties  entitled  living  at  the  death  of  the  donee.*  But 
if  the  donee  is  to  make  the  distribution  immediately ,  or  as 
soon  as  may  be,  the  court,  on  his  death,  without  executing 
the  power,  will  distribute  the  fund  among  those  entitled  at 
the  death  of  the  donor  ;  ^  and  the  same  rule  will  be  followed 
if  the  donee  die  before  the   donor.^     These  rules,  however, 

1  Denny  v.  Kettel,  135  Mass.  138.  2  jones  v.  Foote,  137  Mass.  543. 

3  Moseley  v.  Moseley,  R.  t.  Finch,  .53;  Clarke  v.  Turner,  Freem.  199; 
Eichardson  v.  Chapman,  7  Bro.  P.  C.  318;  Brown  v.  Higgs,  5  Yes.  504. 

4  Cruwys  v.  Colman,  9  Ves.  319;  Brown  v.  Pocock,  6  Sim.  257;  Bon- 
ser  V.  Kinnear,  2  Gif.  195;  Birch  v.  Wade,  3  Ves.  &  B.  198;  Walsh  v. 
Wallinger,  2  R.  &  M.  78;  Burrough  v.  Philcox,  5  My.  &  Cr.  72;  Wood- 
cock V.  Renneck,  4  Beav.  190;  1  Phill.  72;  Finch  v.  Hollingsworth,  21 
Beav.  112;  Doyley  v.  Attorney-General,  2  Eq.  Ca.  Ab.  194,  pi.  15;  Witts 
V.  Boddington,  3  Bro.  Ch.  95;  Winn  v.  Fenwick,  11  Beav.  438;  Tiffin  v. 
Longman,  15  Beav.  275;  Grieveson  v.  Kirsopp,  2  Keen,  653;  Freeland  v. 
Pearson,  L.  R.  3  Eq.  658. 

5  Brown  v.  Higgs,  4  Ves.  70S;  Longmore  v.  Broom,  7  Ves.  124;  Cole 
V.  Wade,  16  Ves.  27. 

6  Penny  v.  Turner,  2  Phill.  493 ;  Hutchinson  v.  Hutchinson,  13  Ir. 
Eq.  332. 

342 


CHAP.  VIII.]       HOW   THE   COURT   WILL   EXECUTE   THEM.  [§  258. 

are  applicable  only  when  tlie  final  beneficiaries  take  through 
the  medium  of  the  power  ;  for  if  they  take  directly  by  the 
form  of  the  gift  subject  to  be  defeated  by  the  execution  of 
the  power,  they  have  a  vested  interest  at  the  death  of  the 
donor,  and  of  course  those  living  at  that  time  will  take,  if 
the  power  is  not  executed  to  defeat  them.^  "Where  the  donee 
may  execute  the  power  by  deed  or  will  at  any  time  during 
his  life,  and  he  dies  leaving  the  power  unexecuted,  there  is 
a  conflict  of  the  authorities  upon  the  question  to  whom  should 
the  court  give  the  funds  :  Mr.  Lewin  says  that  there  is  an 
equal  conflict  of  principle.^ 

1  Lambert  v.  Thwaites,  L.  R.  2  Eq.  151. 

2  Doyley  i'.  Attorney-General,  2  Eq.  Ca.  Ab.  195;  Harding  v.  Glyn, 
1  Atk.  469;  Pope  v.  Whitcombe,  3  Mer.  689,  are  authorities  that  those 
living  at  the  death  of  the  donee  should  take.  On  the  other  hand,  the  cases 
of  Hands  r.  Hands,  1  T.  R.  437,  note;  Grieveson  v.  Kirsopp,  2  Keen,  653, 
are  authorities  that  those  living  at  the  death  of  the  donor  should  take. 
Mr.  Lewin  says,  p.  600  (5th  ed.  Lond.):  "  Upon  principle,  too,  as  well  as 
upon  authority,  this  question  is  attended  with  difficulty.  On  the  one 
hand,  the  power  may  be  properly  exercised  by  the  donee  at  any  time  before 
his  death,  and  there  is  no  obligation  to  exercise  it  earlier,  and  if  any 
members  of  the  class  die  before  the  power  is  exercised,  they,  according  to 
the  ordinary  rule,  cease  to  be  objects  of  it.  The  donee  of  the  power  has 
an  undoubted  right  to  postpone  the  execution  of  it  until  the  last  moment 
of  his  life,  and  the  only  default  which  the  court  has  to  supply,  is  the  non- 
exercise /ms^  before  his  death  ;  and  that  default  must,  therefore,  be  supplied 
in  favor  of  those  who  were  objects  at  the  date  of  the  death  of  the  donee. 
On  the  other  hand,  the  donee  of  the  power  may  exercise  it  in  favor  of  the 
class  existing  at  the  time  of  exercise,  to  the  exclusion  of  those  who  have 
died  before,  and  also,  where  the  power  is  one  of  selection,  to  the  exclusion 
of  those  who  may  come  into  esse  subsequently,  but  the  court  cannot  act 
arbitrarily,  and  cannot  show  any  favor,  but  must  observe  equality  towards 
all.  Who,  then,  are  the  objects  of  the  power?  As  it  was  not  the  duty 
of  the  donee  of  the  power  to  exercise  it  at  one  time  more  than  another, 
the  only  objects  of  the  power  must  be  all  those  who  might  by  possibility 
have  taken  a  benefit  under  it;  that  is,  those  living  at  the  death  of  the 
testator,  and  those  who  come  into  being  during  the  continuance  of  the 
life-estate ;  otherwise,  should  all  the  class  predecease  the  tenant  for  life 
(an  event  not  improbable  where  children  or  some  limited  class  of  relations 
are  the  objects),  there  would  be  a  power  imperative  which  is  construed  a 
trust,  and  no  cestui  que  trust,  —  a  result  which,  it  is  conceived,  the  court 
would  be  somewhat  unwilling  to  adopt. 

343 


ACCEPTANCE   OF   THE   TRUST.  [CHAP.  IX. 


CHAPTER   IX. 

APPOINTMENT,  ACCEPTANCE,  DISCLAIMER,  REMOVAL,  RESIGNATION, 
SUBSTITUTION,  AND  NUMBER  OF  TRUSTEES,  AND  APPOINTMENT 
UNDER    A    POWER. 

§  259.  Acceptance  of  the  trust  —  how  and  when  it  should  be  accepted. 

§  260.  What  is  an  acceptance,  and  its  effect. 

§  261.  How  an  acceptance  may  be  shown. 

§  261  a.   Trustee's  bond. 
§§  262, 263.  Where  an  executor  is  also  named  as  trustee. 

§  264.    Of  the  executor  of  an  executor,  or  the  executor  of  a  trustee. 

§  265.   Trustee  de  son  tort. 

§  266.   No  such  thing  as  a  passive  trustee. 

§  267.    Disclaimer  by  trustee. 

§  268.  Cannot  disclaim  after  acceptance. 

§  269.  Whether  an  heir  can  disclaim  after  the  death  of  the  trustee. 

§§  270,  271.     Parol  disclaimer  sufficient,  but  a  writing  more  certain. 

§  272.  Where  a  legacy  or  other  benefit  is  given  to  the  trustee  or  executor. 

§  273.  Effect  of  a  disclaimer. 

Removal  or  resignation. 

§  274.  How  a  trustee  may  be  removed  or  resign. 

§  275.  For  what  causes  may  be  removed. 

§  276.  For  what  causes  maj^  be  allowed  to  resign. 

§  276  a.         A  trust  shall  not  fail  for  lack  of  a  trustee.     See  §  73L 
§§  277,  278.     How  the  court  proceeds  iu  substituting  trustees. 

§  279.  Bankruptcj'  of  trustee. 

§  280.  The  resignation  of  trustees. 

§  281.  Where  the  same  person  is  executor  and  trustee. 

§  282.  The  proceedings  to  remove  and  substitute  trustees. 

§  283.  Where  all  parties  consent. 

§  284.  Of  the  vesting  of  the  property  in  the  new  trustees. 

§  285.  Duty  of  trustee  where  all  consent  to  his  discharge. 

§  286.   Of  the  number  of  trustees. 

Appointment  of  trustees  under  a  power. 

§  287.  Trustees  cannot  appoint  their  successors  or  new  trustees  unless  power  is 

given  in  the  instrument  of  trust. 

§  288.  Caution  necessary  in  new  appointments. 

§  289.  Powers  of  appointment  frequently  matters  of  personal  confidence. 

§  290.  Occasions  or  events  upon  which  new  appointments  may  be  made. 

§  291.  An  appointment  may  be  made  to  fill  a  vacancy  occurring  before  the 

death  of  the  testator. 

§  292.  Unfitness  and  incapacity. 

§  293.  Power  cannot  be  exercised  if  the  trust  is  alread}-  in  suit  in  court. 

344 


CHAP.  IX.]  ACCEPTANCE   OP  THE   TRUST.  [§  259. 

§  294.  By  whom  the  power  may  be  exercised. 

§  295.  The  power  must  be  strictly  followed. 

§  296.  Wiio  may  be  appointed  to  exercise  the  power. 

§  297.  Who  may  be  appointed  under  a  power. 

§  259.  When  a  trust  is  created  by  implication,  result,  or 
construction  of  law  from  acts  of  parties,  they  will  be  held  by 
the  law  to  the  performance  of  the  trust  whether  they  are 
willing  or  unwilling  to  accept  the  situation  ;  that  is,  when  a 
trust  is  raised  by  law  and  thrust  upon  the  conscience  of  a 
party,  as  the  result  or  construction  to  be  put  upon  his  acts, 
in  order  to  do  complete  justice,  the  acceptance  or  refusal  of 
the  party  to  be  charged  with  the  trust  cannot  alter  his  legal 
or  equitable  liability  to  act  as  a  trustee,  and  to  do  all  that  is 
required  of  him  to  execute  the  trust.  Subject  to  this  quali- 
fication, no  one  is  compellable  to  undertake  a  trust.^  If  a 
conveyance  is  made  by  a  private  individual  or  corporation  to 
public  officers  and  their  successors  in  office,  the  successors 
are  not  bound,  unless  they  accept  the  trust.^  In  voluntary 
or  express  trusts,  no  title  vests  in  the  proposed  trustee,  by 
whatever  instrument  it  is  attempted  to  be  transferred,  unless 
he  expressly  or  by  implication  accepts  the  office,  or  in  some 
way  assumes  its  duties  and  liabilities.^  And  though  a  person 
may  have  promised  or  agreed  beforehand  to  accept  a  trust, 
and  his  name  is  introduced  into  the  will,  conveyance,  or  set- 
tlement, yet  he  may  decline  to  act,  and  it  is  proper  for  him 
to  do  so  if  he  finds  that  his  duties  are  different  from  what  he 
conceived  them  to  be  when  he  entered  into  the  agreement ; 
or  if  for  any  reason  he  cannot  attend  to  the  proper  discharge 

I  Lowry  v.  Fulton,  9  Sim.  123;  Robinson  v.  Pitt,  3  P.  Wms.  251; 
Moyle  V.  Moyle,  2  Russ.  &  M.  715.  And  he  may  renounce  the  trust, 
though  such  renunciation  may  deprive  a  beneficiary  of  all  means  of 
obtaining  a  benefit  intended  for  him  by  a  testator.  Beekman  v.  Bonsor, 
23  N.  Y.  298;  Kennedy  v.  Winn,  80  Ala.  166. 

2  Delaplane  v.  Lewis,  19  Wis.  476. 

8  Maccubbin  v.  Cromwell,  7  Gill  &  J.  157;  Bethune  v.  Dougherty,  21 
Ga.  257;  King  v.  Donnelly,  5  Paige,  46;  Trask  v.  Donaghue,  1  Aik.  370; 
Burritt  v.  Silliman,  13  N.  Y.  93;  De  Peyster  v.  Clendining,  8  Paige,  295; 
Bulkley  v.  De  Peyster,  26  Wend.  21;  Judson  v.  Gibbons,  5  Wend.  224; 
Cooper  V.  McClun,  16  III.  435;  Matter  of  Robinson,  37  N.  Y.  261;  Arm- 
strong V.  Morrill,  14  Wall.  138. 

345 


§  2G0.]  ACCEPTANCE    OF   THE    TRUST.  [CHAP.  IX. 

of  the  office.^  Such  refusal  does  not  invalidate  the  deed  or 
will :  it  only  relieves  the  trustees,  and  enables  the  court  to 
appoint  others.^  The  refusal  to  act  should  be  affirmatively 
shown,  either  by  an  express  disclaimer,  or  by  such  a  tacit 
refusal  to  act  as  amounts  to  an  express  rejection  ;  ^  for  every 
gift  by  will  or  deed  is  supposed,  prima  facie,  to  be  beneficial 
to  the  donee,  and  therefore  the  law  will  presume  that  every 
gift,  whether  in  trust  or  not,  is  accepted  until  the  contrary  is 
proved.*  Especially  will  this  presumption  prevail  after  a  long 
lapse  of  time,  as  twenty  years,^  or  thirty-four  years,^  if  the 
trustee  has  notice,  and  has  not  disclaimed,  though  he  may 
have  done  nothing  in  the  execution  of  the  trust.  And  even 
where  a  deed  was  only  four  years  old,  and  the  trustees  knew 
of  their  appointment,  and  did  not  object.  Lord  St.  Leonards 
held  that  they  could  not  be  allowed  to  say  that  they  did  not 
assent  to  the  conveyance.' 

§  260.  If  the  trust  is  created  by  deed,  the  most  obvious, 
natural,  and  effectual  mode  of  signifying  an  acceptance  is  by 
signing  the  deed;^  but  such  execution  of  the  deed  by  the 
trustee  is  not  necessary.^     Where  trusts  are  by  will  vested  in 

1  Doyle  V.  Blake,  2  Sch.  &  Lef .  239 ;  Evans  i'.  John,  4  Beav.  35 ;  Smith 
V.  Knowles,  2  Grant,  Ca.  418 ;  Crook  v    Introldsby,  2  Ir.  Eq.  375. 

2  Brownell  v.  Downs,  11  How.  62;  Nicoll  i-.  Miller,  37  111.  387;  NicoU 
V.  Ogden,  29  111.  323;  Elstner  v.  Fife,  32  Ohio  St.  358;  Thatcher  v.  St. 
Andrews  Church,  37  Mich.  264;  Johnson  v.  Roland,  58  Tenn.  203.  De- 
clining to  act  as  executor  is  not  a  renunciation  of  the  trust  over  a  fund 
bequeathed  in  the  will.  Garner  v.  Dowling,  11  Heisk.  (Tenn.)  48; 
William  p.  Gushing,  34  Me.  370;  Taintor  v.   Clark,  13  Met.  224. 

3  Read  v.  Robinson,  6  Watts  &  S.  331. 

4  Ibid.;  Townson  v.  Tickell,  3  B.  &  Aid.  36;  Thompson  v.  Leach, 
Ventr.  198;  Wilt  v.  Franklin,  1  Binn.  502;  Wise  v.  Wise,  2  Jon.  &  La. 
412;  Eyrick  v.  Hetrick,  13  Pa.  St.  494;  4  Kent,  500;  4  Cru.  Dig.  404- 
406;  Goss  v.  Singleton,  2  Head,  67;  Penny  v.  Davis,  3  B.  Mon.  313; 
Furman  v.  Fisher,  4  Cold.  626. 

6  In  re  Uniacke,  1  Jon.  &  La.  1 ;  Eyrick  v.  Hetrick,  13  Pa.  St.  493. 

*  In  re  Needham,  1  Jon.  &  La.  34. 

7  Wise  V.  Wise,  2  Jon.  &  La.  403-412;  Penny  v.  Davis,  3  B.  Mon.  314; 
Lewis  V.  Baird,  3  McLean,  65;  Read  v.  Robinson,  6  AYatts  &  S.  338. 

*  Patterson  v.  Johnson,  113  111.  559,  a  good  case  on  acceptance. 

9  Flint  V.  Clinton  Co.,  12  N.  H.  432;   Cook  v.  Fryer,  1  Hare,  498; 

846 


CHAP.  IX.]  ACCEPTANCE    OF    THE    TRUST.  [§  260. 

the  executors  as  such,  acccpthig  and  qualifying  as  executor 
accepts  the  trusts.^  Acceptance  may  be  presumed  by  acts  of 
the  trustee  at  or  subsequent  to  the  grant.^  If  the  trustee  acts 
under  the  deed  in  the  performance  of  the  trust,  he  will  be  held 
to  have  accepted,  though  he  has  not  executed,  the  deed,  and 
he  may  be  liable  for  a  breach  of  the  trust ;  '^  but  if  the  deed 
contains  special  covenants,  the  trustee  cannot  be  sued  upon 
them,  if  he  has  not  executed  it,  though  he  may  have  accepted 
the  deed.*  Nor  will  the  execution  of  the  deed  amount  to  a 
covenant  to  execute  the  trust,  if  it  does  not  contain  words  that 
can  be  construed  into  such  a  covenant  at  law.^  But  the  word 
covenant  or  agree  is  not  necessary  for  that  purpose ;  the  word 
declare  will  sufilice.^  If  there  is  a  breach  of  the  trust,  but 
no  execution  of  the  deed  other  than  by  an  acceptance  of  it, 
a  simple  contract  debt  only  is  created  against  the  trustee  or 
his  estate,'^  but  a  breach  of  covenants  under  the  hand  and 
seal  of  the  trustee  creates  a  specialty  debt,  which  in  some 

Montfort  v.  Cadogan,  17  Ves.  488;  19  Ves.  638;  Small  v.  Ayleswood,  9 
B.  &  Cr.  300;  Leffler  v.  Armstrong,  4  Iowa,  482;  Buckridge  v.  Glasse,  1 
Cr.  &  Ph.  131;  Bixler  v.  Taylor,  3  B.  Mon.  362;  Field  v.  Arrowsmith,  3 
Humph.  442;  Smith  v.  Knowles,  2  Grant,  Ca.  413;  Roberts  v.  Moseley, 
51  Mo.  284. 

1  Earle  v.  Earle,  93  N.  Y.  104. 

2  Harvey  v.  Gardner,  41  Ohio  St.  642. 

8  Redenour  v.  Wherritt,  30  Ind.  485.  See  also  cases  in  note  9, 
p.  346. 

*  Richardson  v.  Jenkins,  1  Drew.  477;  Vincent  v.  Godson,  1  Sm.  & 
Gif.  384. 

s  Wynch  v.  Grant,  2  Drew.  312;  Courtney  v.  Taylor,  6  M.  &  Gr.  851; 
Newport  v.  Bryan,  5  Ir.  Ch.  119;  Adey  v.  Arnold,  2  De  G.,  M.  &  G.  438; 
Marryatt  v.  Marryatt,  6  Jur.  (n.  s.)  572;  Holland  v.  Holland,  L.  R.  4 
Ch.  449. 

^  Richardson  v.  Jenkins,  1  Drew.  477;  Saltoun  v.  Hanston,  1  Bing. 
N.  C.  433;  Cummins  v.  Cummins,  3  Jon.  &  La.  64;  8  Ir.  Ch.  723;  Jen- 
kins V.  Robertson,  Law  R.  1  Eq.  123. 

'  Jenkins  v.  Robertson,  1  Eq  R.  123;  Lockhart  v.  Reilly,  1  De  G.  «fe 
J.  464;  V^ernon  v.  Vawdry,  2  Atk.  119;  Barn.  280;  Cox  v.  Bateman,  2 
Ves.  19;  Kearnan  v.  Fitzsimon,  3  Ridg.  P.  C.  18.  If  the  trustee  execute 
the  deed,  and  it  is  a  simple  acceptance  of  the  trust  on  his  part,  the  breach 
of  the  trust  is  a  simple  contract  debt,  for  there  is  no  breach  of  any  express 
covenant.     Holland  v.  Holland,  L.  R.  4  Ch.  449. 

347 


§  261.]  ACCEPTANCE    OF   THE    TRUST.  [CHAP.  IX. 

jurisdictions  takes  precedence  of  simple  contract  debts.^  This 
distinction  is  of  no  effect  in  the  United  States,  as,  in  every 
State,  probably  the  real  estate  of  a  deceased  person  is  equally 
liable  for  his  debts,  however  contracted  or  evidenced.  If  the 
trustee  executes  the  deed,  he  should  see  to  it  that  the  recitals 
are  all  correct,  otherwise  he  may  be  held  liable  to  make  them 
good.2  Acceptance  of  the  trust  estops  the  trustee  from  de- 
nying the  title  of  the  person  for  whom  he  holds.^ 

§  261.  Parol  evidence  of  the  conversations,  acts,  and  ad- 
missions of  a  party  are  admissible  to  prove  his  acceptance  of 
a  trust.^  Thus,  if  a  person,  with  notice  of  his  appointment 
to  a  trust,  receives  the  income  of  the  trust  estate ;  ^  or  exe- 
cutes a  power  of  attorney ;  ^  or  signs  a  joint  draft,  order,  or 
receipt,  to  enable  some  other  person  to  act  in  administering 
the  estate  or  the  trust ;  "^  or  signs  a  receipt  as  trustee  ;  ^  or 
gives  notice  to  a  tenant  of  the  estate  to  pay  rent  to  him  ;  ^  or 
brings  an  action  on  the  footing  of  the  trust ;  i*^  or  interferes 

^  Gifford  V.  Manley,  For.  109;  Mavor  v.  Davenport,  2  Sim.  227;  Benson 
V.  Benson,  1  P.  Wms.  131;  Deg  v.  Deg,  2  P.  Wnis.  414;  Turner  v.  AVar- 
dle,  7  Sim.  80;  Bailey  v.  Ekins,  2  Dick.  632;  Cummins  v.  Cummins,  3 
Jon.  &  La.  64;  Primrose  v.  Bromley,  1  Atk.  89;  Wood  v.  Hardisty,  2 
Coll.  542,  commented  upon  in  L.  R.  1  Eq.  125. 

"^  Gore  V.  Bowser,  3  Sm.  &  Gif.  6;  Chaigneau  v.  Bryan,  1  Ir.  Ch.  172; 
8  Ir.  Ch.  251;  Story  v.  Gape,  2  Jur.  (n.  s.)  706;  Bliss  r.  Bridgewater 
(cited  Lewin  on  Trusts,  166,  5th  ed).  But  in  Fenwick  v.  Greenwell,  10 
Beav.  418,  the  ]\Iaster  of  the  Rolls  refused  to  allow  the  recital  of  a  rep- 
resentation to  bind  the  trustees. 

^  Smith  V.  Sutton,  Adm'r,  74  Ga.  528. 

*  Urch  V.  Walker,  3  My.  &  Cr.  703;  James  v.  Frearson,  1  N.  C.  C. 
375;  1  Y.  &  C.  Ch.  Ca.  370;  Doe  v.  Harris,  16  M.  &  W.  517;  Redenour 
V.  Wherritt,  30  Ind.  485. 

^  Conyngham  v.  Conyngham,  1  Ves.  .522. 

6  Harrison  v.  Graham,  1  P.  Wms.  241,  n.;  1  Wms.  Ex'rs,  151;  Han- 
bury  r.  Kirkland,  3  Sim.  265;  Christian  v.  Yancey,  2  P.  &  H.  (Va.)  240. 

7  Broadhurst  v.  Balguy,  1  Y.  &  C  Ch.  Ca.  16;  Sadler  v.  Hobbs,  2  Bra. 
Ch.  114;  Doyle  v.  Blake,  2  Sch.  &  Lef.  231. 

8  Kennedy  v.  Winn,  80  Ala.  166. 

9  Montfort  v.  Cadogan,  17  Ves.  487. 

10  Ibid.;  O'Neill  v.  Henderson.  15  Ark.  235,  Pond  v.  Hine,  21  Conn. 
519;  Penny  v.  Davis,  3  B.  Mou.  314. 

348 


CHAP.  IX.]        ACCEPTANCE  OF  THE  TRUST.  [§  261. 

generally  by  ordering  the  trust  property  to  be  sold,  or  by  being 
present  at  the  sale,  or  by  giving  any  directions  implying  own- 
ership, or  by  frequently  making  inquiries  of  the  acting  trustee 
as  to  the  affairs  of  the  trust,^  or  by  not  objecting  when  the 
instrument  of  trust  is  read  to  him,^ —  all  these  acts  may  be 
shown  by  parol,  as  evidence  tending  to  prove  an  acceptance, 
and  the  evidence  will  be  more  or  less  conclusi\{e  according  to 
the  circumstances  of  each  case.  The  general  rule  is,  that 
every  voluntary  interference  with  the  trust  property  will  stamp 
a  person  as  an  acting  trustee,^  unless  such  interference  can  be 
plainly  referred  to  some  other  ground  of  action  than  to  an 
acceptance  of  the  trust,  as  by  showing  that  such  a  person 
acted,  in  interfering,  as  the  mere  agent  of  an  acting  trustee.* 
The  mere  fact  that  a  person  named  as  trustee  in  a  deed  takes 
the  custody  of  the  deed  until  another  trustee  can  be  appointed 
is  not  an  acceptance,  because  his  acts  are  plainly  referable  to 
another  ground  of  action.^  While  parol  evidence  is  compe- 
tent to  show  whether  a  supposed  trustee  has  or  has  not  ac- 
cepted the  trust,  it  is  not  competent,  in  behalf  of  the  trustee, 
to  prove  by  such  evidence  the  conversations  or  declarations 
of  the  settlor,  in  order  to  show  what  property  was  subject 
to  the  trust.^  A  trustee  should  take  care  that  his  acts 
in  relation  to  the  trust  fund  are  plainly  referable  to  some 

1  James  v  Frearson,  1  Y.  &  C.  Ch.  Ca.  375;  Shepherd  v.  McEvers,  4 
Johns.  Ch.  136;  Crocker  v.  Lowenthal,  83  111.  579. 

2  James  v.  Frearson,  1  Y.  &  C.  Ch.  Ca.  375;  Chidj^ey  r.  Harris,  16  M. 
&  W.  517;  Butler  v.  Baker,  3  Co.  26  a;  Hanson  v.  Worthiiigton,  12  Md. 
418;  Roberts  v.  Moseley,  64  Mo.  .507. 

8  White  V.  Barton,  18  Beav.  192;  Harrison  v.  Graham,  cited  Churchill 
V.  Hobson,  1  P.  Wms.  241  n.  (y);  Cummins  v.  Cummins,  8  Ir.  Eq.  723; 
Doyle  V.  Blake,  2  Sch.  &  Lef.  231 ;  Malzy  v.  Edge,  2  Jur.  (n.  s.)  80;  Lewis 
V.  Baird,  3  McLean,  56;  Maccubbin  v.  Cromwell,  7  Gill  &  J.  157;  Penny 
V.  Davis,  3  B.  Mon.  313. 

4  Stacy  V.  Elph,  1  M.  &  K.  195;  Lowry  v.  Fulton,  9  Sim.  115;  Dove 
V.  Everard,  1  R.  &  M.  281;  Taml.  376;  Orr  v.  Newton,  2  Cox,  274;  Bal- 
chen  V.  Scott,  2  Ves.  Jr.  678;  Carter  v.  Carter,  10  B.  Mon.  327;  Judson 
V.  Gibbons,  5  Wend.  224.  And  the  onus  is  on  the  alleged  trustee.  Ken- 
nedy V.  Winn,  80  Ala.  165. 

s  Evans  v.  John,  4  Beav.  35;  Smith  v.  Knowles,  2  Grant,  Ca.  413. 

«  Doyle  V.  Blake,  2  Sch.  &  Lef.  240. 

349 


§  262.]  ACCEPTANCE   OP   THE   TRUST.  [CHAP.  IX. 

certain  ground  of  action  ;  for  if  his  acts  are  ambiguous,  or  it 
is  doubtful  whether  he  intended  to  accept,  or  to  act  in  some 
other  capacity,  the  doubt  will  be  against  him,  and  he  will 
be  construed  to  have  accepted  the  trust  and  all  its  responsi- 
bilities.i 

§  261  a.  Sometimes  a  bond  is  required  by  the  instrument 
creating  the  trust,  and  sometimes  the  grantor  expressly  de- 
sires that  the  trustee  shall  not  be  required  to  give  security. 
In  the  case  of  executors,  statute  law  provides  for  the  giving 
of  a  bond,2  and  in  relation  to  express  trustees  in  general, 
similar  provisions  may  exist.^ 

§  262.  At  common  law  an  executor  was  said  to  derive  his 
authority  from  the  will,  and  not  from  the  appointment  of  the 
Probate  Court.*  Therefore  most  of  the  acts  of  persons  nomi- 
nated to  execute  wnlls  were  valid  before  the  probate  of  the 
will.^  Thus  persons  appointed  by  a  testator  in  his  will  to 
administer  his^  estate,  and  execute  the  trusts  created  by  such 
will,  might  assume  the  trusts  and  proceed  in  the  execution 
of  them,  without  presenting  the  will  for  probate;^  and  the 
same  evidence  might  be  used  to  show  that  a  trustee  under  a 
will  had  accepted  such  trust,  and  had  assumed  its  responsi- 
bilities, as  was  admissible  to  show  that  a  trustee  under  a  deed 
had  accepted  the  office."     But  in  nearly  all  the  United  States 

^  Read  v.  Truelove,  Amb.  417;  Chaplin  v.  Givens,  1  Rice,  Eq.  15-1; 
Doe  V.  Harris,  16  M.  &  W.  517;  Lowry  v.  Fulton,  9  Sim.  115;  Conyng. 
ham  V.  Conyngham,  1  Yes    522;  Montgomery  v.  Johnson,  11  Ir.  Eq.  476. 

2  See  §  262. 

3  Bates  V.  State,  75  Tnd.  463:  Hinds  v.  Hinds,  85  Ind.  312;  Tucker  v. 
State,  72  Ind.  242 ;  Thiebaud  v.  Dufour.  54  id.  320. 

4  Toller's  Ex'rs,  95. 

6  Easton  v.  Carter,  5  Exch.  8;  Venables  v.  East  Tnd.  Co.,  2  Exch.  633; 
Toller's  Ex'rs,  46,  47  ;  Mitchell  v.  Rice,  6  J.  J.  Marsh.  625. 

6  Ibid.;  Vanhorne  v.  Fonda,  5  Johns.  Ch.  403. 

^  Conyngham  v.  Conyngham,  1  Ves.  522;  Doyle  v.  Blake,  2  Sch.  & 
Lef.  231;  James  v.  Frearson,  1  Y.  &  C.  Ch.  Ca.  370;  Maccubbin  v.  Crom- 
well, 7  Gill  &  J.  157 ;  Godwin  v.  Yonge,  22  Ala.  553;  Latimer  v.  Hanson, 
1  Bland,  51;  Flint  ?-.  Clinton  Co.,  12  N.  H.  4-32;  Chaplin  ;•.  Givens,  1 
Rice,  Eq.  133;  Baldwin  v.  Porter,  12  Conn.  473. 
350 


CHAP.  IX.]  ACCEPTANCE   OP   THE   TRUST.  [§  262. 

there  are  statutes  upon  the  subject  which  require  that  wills 
shall  be  presented  for  probate,  and  that  executors  and  trustees 
under  them  shall  give  bonds  for  the  faithful  discharge  of 
their  duties.  Where  such  statutes  are  in  force,  executors  or 
trustees  have  no  power  or  authority  to  act  without  appoint- 
ment by  the  Probate  Court,  and  a  refusal  or  neglect  to  qualify 
by  giving  bonds  will  be  considered  a  refusal  and  disclaimer 
of  the  trust.^  In  the  absence  of  such  statutes,  if  a  person 
named  as  executor  procures  probate  of  the  will,  he  will 
thereby  constitute  himself  executor  with  all  the  liabilities 
attached  to  the  office,^  and  if  the  same  person  is  appointed 
executor  and  trustee,  probate  of  the  will  by  him  will  be  an 
acceptance  of  the  trusts.^  But  the  same  person  may  be  ap- 
pointed both  executor  and  trustee  under  a  will  in  such  a 
manner  that  he  may  accept  one  of  the  offices  and  decline  the 
other.     As  if  a  man  is  appointed  executor,  and  as  executor 

1  Luscomb  v.  Ballard,  5  Gray,  403;  Monroe  v.  James,  4  Munf.  195 
Trask  v.  Donaghue,  1  Aik.  (Vt.)  373;  Carter  v.  Carter,  10  B.  Mon.  327 
Mitchell  V.  Rice,  6  J.  J.  Marsh.  625,  Robertson  v.  Gaines,  2  Humph.  381 
Johnson's  App.,  9  Barr,  416;  Simpson's  App.,  Id.;  Wood  v.  Sparks,  1 
Dev.  &  Bat.  396;  Miller  w.  Meetch,  8  Barr,  417;  Roseboom  v.  Moshier,  2 
Denio,  61;  Williams  v.  Gushing,  34  Me.  370;  Deering  v.  Adams,  37  Me. 
265,  Hanson  v.  Worthington,  12  Md.  418;  Knight  v.  Loomis,  30  Me.  208; 
Groton  r.  Ruggles,  17  Me.  137;  Sawyer's  App.,  16  N.  H.  459;  Gaskill  v. 
Gaskill,  7  R.  I.  478;  Mahony  v.  Hunler,  30  Ind.  246.  In  many  of  the 
States  there  are  statutes  that  authorize  the  judges  of  probate  to  appoint 
executors  or  trustees  under  wills,  without  requiring  bonds  with  sureties, 
if  the  testator  request  it  in  his  will,  or  if  all  the  parties  in  interest,  being 
sui  juris,  request  it  in  writing.  In  such  cases  the  court  proceeds  with 
great  caution,  and  it  may  at  any  time  require  security  if  the  circumstances 
seem  to  require  it.  Gibbs  v.  Guignard,  1  S.  C.  359.  The  omission  to 
give  the  bond  required  does  not  divest  the  trustee  of  the  legal  title. 
Gardner  v.  Brown,  21  Wall.  36. 

2  Booth  V.  Booth,  1  Beav.  125;  Ward  v.  Butler,  2  Moll.  533  ;  Styles  v. 
Guy,  1  Mac.  &  G.  431 ;  Scully  v.  Delaney,  2  Ir.  Eq.  165;  and  see  Balchen 
V.  Scott,  2  Ves.  Jr.  678;  Peeble's  App.,  15  Serg.  &  R.  39;  Worth  v.  Mc- 
Aden,  1  Dev.  &  Bat.  Eq.  209;  Cummins  v.  Cummins,  3  Jon.  &  La.  64; 
Hanson  v.  Worthington,  12  Md.  418. 

8  Mucklow  V.  Fuller,  Jac.  198;  Williams  v.  Nixon,  2  Beav.  472  ;  Clarke 
V.  Parker,  19  Ves.  1  ;  Cummins  v.  Cummins,  3  Jon.  &  La.  64;  Hanson  v. 
Worthington,  12  Md.  418;  Baldwin  v.  Porter,  12  Conn.  473. 

351 


§  262.]  ACCEPTANCE   OP   THE   TRUST.  [CHAP.  IX. 

is  to  act  as  a  trustee,  in  such  case  the  probate  of  the  will,  and 
qualification  as  executor,  will  be  an  acceptance  of  the  trust. ^ 
But  if  from  the  will  it  appears  that  the  testator  intended  to 
give  his  trustees  a  distinct  and  independent  character,  probate 
of  the  will  by  the  executors  will  not  make  them  trustees, 
unless  they  also  accept  the  trust  and  qualify  themselves  ac- 
cording to  law.2  If  the  executor  is  not  expressly  appointed 
trustee,  the  court  may  determine  from  the  whole  will  whether 
he  is  to  act  as  trustee.^  If  the  trust  is  given  to  one  named, 
and  the  same  person  is  afterwards  appointed  executor,  the 
trust  is  not  annexed  to  the  office  of  executor.^  The  condi- 
tions of  bonds  of  administrators  are  to  administer  the  estate 
according  to  law.  Bonds  of  executors  are  conditioned  to 
administer  an  estate  according  to  the  will,  though  a  condition 
to  administer  according  to  law  is  the  same  thing,  because 
by  law  they  are  to  administer  according  to  the  will.  If, 
therefore,  by  the  terms  of  the  will  the  executor,  as  executor, 
is  to  keep  the  estate,  or  any  portion  of  it,  in  his  hands,  and 
is  to  deal  with  it  as  a  trustee,  his  bond  will  be  held  as  security 
for  the  faithful  performance  of  his  duties,  though  such  duties 
are  much  larger  and  different  from  those  of  an  ordinary  .ex- 
ecutor.^    Where  the  income  of  property  is  given  to  one  for 

^  De  Peyster  v.  Clendiningf,  8  Paige,  29.5;  Hanson  v.  TTorthington.  12 
Md.  418;  Williams  v.  Conrad,  30  Barb.  524;  Mucklow  r.  Fuller,  Jac.  198; 
Booth  V.  Booth,  1  Beav.  12.5;  Williams  v.  Nixon,  2  Beav.  472;  Ward  v. 
Butler,  2  Moll.  533;  Wilson's  Estate,  2  Pa.  St.  32.5. 

2  De  Peyster  v.  Clendining,  8  Paige,  295;  Worth  v.  IMcAden,  1  Dev.  & 
Bat.  209;  Judson  v.  Gibbons,  5  Wend.  226;  Williams  v.  Gushing,  34  Me. 
370;  Deering  v.  Adams,  37  Me.  265;  Hanson  v.  Worthington,  12  Md. 
418;  Knight  v.  Loomis,  30  Me.  204;  Wheatley  v.  Badger,  7  Pa.  St.  459; 
But  see  Anderson  v.  Earle,  9  S.  C.  460. 

3  Sawyer's  App.,  16  N.  H.  459;  Carson  v.  Carson,  6  Allen,  897;  How- 
ard V.  Amer.  Peace  Soc.,49  Me.  288,  306.  An  executor  must  administer 
the  trust  created  by  will  where  there  is  no  designation  of  the  executor  or 
any  other  person  as  trustee.  Pettingill  v.  Pettingill,  60  Me.  412;  Rich- 
ardson V.  Knight,  69  Me.  385. 

^  James's  App.,  3  Grant,  169. 

5  Sauuderson  v.  Stearns,  6  Mass.  37;  Prescott  v.  Pitts,  9  Mass.  376; 
Hall  15.  Cushing,  9  Pick.  395;  Dorr  v.  Wainwright,  13  Pick.  328;  Towne 
V.  Ammidown,  20  Pick.  325;  Perkins  v.  Moore,  16  Ala.  9;  State  v.  Nicols, 

352 


CHAP.  IX.]  ACCEPTANCE   OP   THE   TRUST.  [§  263. 

life,  and  at  his  death  the  property  is  given  over  to  another, 
and  no  trustee  is  named  in  the  will,  the  executor  is  the  trus- 
tee to  hold  the  property  during  the  life  of  the  legatee  for 
life.^  If,  however,  the  will  contemplates  that  the  executor, 
as  such,  is  to  perform  only  the  ordinary  duties  of  an  executor, 
and  that  when  the  estate  is  settled  by  him,  another  duty  is 
to  arise  to  be  performed,  either  by  him  or  by  another,  then 
the  bond  of  the  executor  is  not  security  for  those  further 
duties ;  but  the  person  who  is  to  perform  them  must  accept 
the  office,  and  give  a  bond  for  their  performance.^  It  may 
be  further  observed,  that  an  executor  will  be  considered  as 
holding  a  legacy  in  his  capacity  as  executor,  unless  the  will 
clearly  shows  that  the  testator  intended  that  he  should  hold 
it  in  the  character  of  a  trustee.^  But  after  the  lapse  of 
twenty  years  the  law  will  presume  that  an  estate  was  fully 
administered,  and  that  thereafter  the  executor  held  the  funds 
as  trustee.*  So,  if  it  appears  that  the  executor  made  an 
actual  final  settlement  of  the  estate  as  executor,  he  will  be 
presumed  to  hold  subsequently  as  a  trustee.^  As  a  general 
rule,  executors'  and  trustees'  bonds  can  be  sued  only  by  leave 
of  court,  upon  good  cause  shown.^ 

§  263.  If  the  same  person  is  both  executor  and  trustee,  it 
is  sometimes  difficult  to  determine  whether,  in  a  particular 
case,  he  is  acting  as  executor  or  trustee.  In  England,  the 
rule  seems  to  be  that  if  the  executor  assents  to  the  legacy, 
if  it  is  specific,  or  if  part  of  the  assets  are  clearly  set  apart 
and  appropriated  by  him  to  answer  a  particular  legacy,  he 
will  be  considered  to  hold  the  fund  as  trustee  for  that  trust, 

10  Gill  &  J.  27;  Wilson's  Estate,  2  Pea.  St.  325;  Sheet's  Est.  52  Pa.  St. 
257 ;  Lansing  v.  Lansing,  45  Barb.  182. 

1  Wheeler  v.  Perry,  18  N.  H.  307. 

2  Knight  V.  Loomis,  30  Me.  204 ;  Mastin  v.  Barnard,  33  Ga.  520;  Per- 
kins V.  Lewis,  41  Ala.  641;  Parsons  v.  Lyman,  5  Blatch.  C.  C.  170; 
Spark's  Est.,  1  Tuck.  Sur.  413. 

3  State  V.  Nicols,  10  Gill  &  J.  27. 
*  Jennings  v.  Davis,  5  Dana,  127. 
6  State  V.  Hearst,  12  Miss.  365. 

6  Floyd  V.  GiUiam,  6  Jones,  Eq.  183. 
VOL.  I. -23  353 


§  263.]  ACCEPTANCE   OF   THE   TRUST.  [CHAP.  IX. 

and  not  as  executor.^  In  jurisdictions  where  executors  and 
trustees  are  required  to  qualify  and  give  bonds,  it  has  been 
held  that  an  executor,  who  is  also  a  trustee  under  the  will, 
cannot  be  considered  as  holding  any  part  of  the  assets  as 
trustee,  until  he  has  settled  his  account  at  the  probate  office 
as  executor,  and  has  been  credited  with  the  amount  as  execu- 
tor with  which  he  is  afterwards  to  be  charged  as  trustee.^ 
In  other  cases  it  has  been  held  that  the  change  of  property 
from  the  executor  to  the  trustee,  where  they  are  the  same 
persons,  may  be  shown  by  some  authoritative  and  notorious 
act  ;^  but  that  the  mere  determination  of  the  executor,  in  his 
own  mind,  to  hold  certain  particular  property  thereafter  in 

1  Dix  V.  Burford,  19  Beav.  409;  Brougham  v.  Poulett,  Id.  119;  Ex 
parte  Dover,  5  Sim.  500;  Phillipo  v.  Munnings,  2  M.  &  Cr.  309;  Byrchall 
V.  Bradford,  6  Madd.  13;  Ex  parte  Wilkinson,  3  Mont.  &  Ayr.  145;  Will- 
mot  V.  Jenkins,  1  Beav.  401. 

2  Hall  V.  Gushing,  9  Pick.  395 ;  Prior  v.  Talbot,  10  Cush.  1 ;  Perkins 
V.  Moore,  16  Ala.  9;  Elliott  ;;.  Sparrell,  114  Mass.  404;  Muse  v.  Sawyer, 
T.  R.  204. 

3  Xewcomb  v.  Williams,  9  Met.  534;  Conkey  v.  Dickinson,  13  Met. 
53;  Hubbard  v.  Lloyd,  0  Cush.  5'22 ;  De  Peyster  r.  Clendining,  8  Paige, 
310;  Pyron  v.  Mood,  2  McMull.  288;  Hitchcock  v.  Bank  of  U.  S.,  7  Ala. 
386;  Perkins  ;;.  Moore,  16  Ala.  9;  State  v.  Brown,  68  N.  C.  554;  Tyler  v. 
Deblois,  4  Mason,  131.  A  defaulting  trustee  who  becomes  entitled  to  a 
portion  of  the  trust,  being  one  of  the  next  of  kin  to  a  deceased  cestui  que 
trust,  will  be  held  to  have  paid  himself,  and  the  share  standing  to  his 
account  on  distribution  will  be  paid  to  the  other  cestuis  que  trust,  to  tlie 
extent  of  the  defalcation.  Jacobs  v.  Ryland,  L.  R.  15  Eq.  341.  See 
Ruffin  V.  Harrison,  81  N.  C.  208,  in  which  the  court,  from  an  examination 
of  the  cases  cited,  deduced  the  following  principles :  1.  Where  the  simple 
relation  of  debtor  and  creditor  exists,  and  the  same  person,  representing 
both,  is  to  pay  and  receive,  the  possession  of  assets  which  ought  to  be 
applied  to  the  debts  is  in  law  an  application.  2.  Where  one  is  clothed 
with  a  double  fiduciary  capacity,  and  the  balance  remaining  upon  a  full 
execution  of  one  trust  belongs  to  the  other,  if  the  amount  has  been 
ascertained  definitely  and  authoritatively,  and  the  fund  is  then  in  the 
trustee's  hands,  the  law  makes  the  transfer.  3.  If  the  first  trust  is  not 
closed,  although  the  trustee  may  have  rendered  an  account,  which  has  not 
been  passed  upon  by  a  competent  tribunal,  the  fund  remains  unchanged, 
and  is  held  as  before.  4.  The  trustee  may,  by  an  unequivocal  act  indi- 
cating the  intent,  elect  to  hold  the  fund  in  possession  in  another  capacity, 
and  it  Mill  be  thereby  transferred. 

354 


CHAP,  IX.]       EXECUTOR  OP  AN  EXECUTOR.  [§  264. 

trust  for  a  particular  legatee  under  the  will,  is  not  such  a 
setting  apart  as  to  discharge  him  from  his  liability  as  execu- 
tor, and  to  charge  him  as  trustee.^  "Where  the  executor  may 
thus  act  in  a  double  capacity,  he  must  account  in  his  capacity 
as  executor,  and  the  sureties  on  his  bond  as  executor  will  be 
liable  for  the  faithful  discharge  of  his  duties  as  such,  until  he 
has  transferred  his  account  to  himself  as  trustee,  and  given 
a  bond  as  trustee.^  But,  at  the  same  time,  it  is  held  that  if 
the  executor,  acting  as  trustee  under  such  a  will,  acts  with 
fidelity  and  due  diligence,  he  and  his  sureties  will  not  be 
responsible  should  any  loss  happen  either  to  the  principal 
or  interest  of  the  trust  fund  ;  that  is,  that  his  liability  in  such 
a  case  is  rather  that  of  a  trustee  than  that  of  an  executor ;  ^ 
and  if  he  has  acted  in  good  faith  in  the  investment  of  the 
legacy,  any  loss  that  may  occur  without  his  fault  will  fall 
upon  the  legatee  or  cestui  que  trust,  and  not  upon  him  or 
the  estate.*  Where  a  decree  in  chancery  created  a  separate 
estate  for  a  married  woman,  and  the  court  appointed  a  trustee 
to  receive  it,  and  ordered  him  to  give  bond  for  the  faithful 
administration  of  the  trust,  the  property  vested  in  him  upon 
his  giving  bond,  and  continued  during  his  life  ;  and,  at  his 
death,  it  did  not  vest  in  the  cestui  que  trust,  but  remained 
subject  to  the  orders  of  the  court.^ 

§  264.  The  executor  of  an  executor,  by  accepting  the  office 
from  his  immediate  testator,  becomes  the  executor  and  trus- 
tee of  his  testator's  testator.  This  is  the  rule  in  England, 
where  an   executor  comes  into   possession  of  all  the  assets 

^  Miller  v.  Congdon,  14  Gray,  114.  The  question,  in  this  case,  was 
whether  the  estate  or  the  legatee  should  suffer  a  certain  loss ;  but  it  was 
not  a  question  whether  the  executor  should  bear  the  loss  in  person. 

2  Prior  V  Talbot,  10  Cush.  1.  A  charge  of  the  amount  set  apart  in 
executor's  account  settled  in  Probate  Court  is  conclusive  against  the  ex- 
ecutor.    Elliott  V.  Sparrell,  114  Mass.  404. 

«  Hubbard  v.  Lloyd,  6  Cush.  522;  Brown  v.  Kelsey,  2  Cush.  248;  Dorr 
V.  Wainwright,  13  Pick.  332;  Right  v.  Cathill,  5  East,  491;  Denne  v. 
Judge,  11  East,  288. 

*  Ibid. 

6  Witter  V.  Dulev,  36  Ala.  135. 

355 


§  264.]  ACCEPTANCE   OF   THE   TRUST.  [CHAP.  IX. 

in  the  hands  of  his  testator,  in  whatever  capacity  such  tes- 
tator held  them ;  and,  by  accepting  the  duty  of  administer- 
ing the  estate  of  his  immediate  testator,  he  accepts  the  duty 
of  administering  all  the  trusts  with  which  the  assets  in  his 
testator's  hands  were  charged.^  An  executor  must  admin- 
ister an  account  for  all  the  assets  that  come  to  his  hands. 
If  his  testator  held  goods  of  a  previous  testator  unadmin- 
istered,  or  if  his  testator  held  assets  as  a  trustee,  probate 
courts  may  appoint  an  administrator  with  the  will  annexed  of 
the  first  testator,  or  a  new  trustee ;  and  it  will  be  the  duty 
of  the  executor  of  the  last  testator  to  settle  an  account  with 
the  administrator  with  the  will  annexed,  or  with  the  new 
trustee,  and  to  pay  over  to  them  the  assets  that  came  to  his 
hands.  Until  such  proceedings  are  had,  he  will  hold  such 
assets  upon  the  same  terms  and  trusts  that  his  testator  held 
them ;  and  it  will  be  his  duty  to  administer  them  accord- 
ingly. The  proposition  may  be  briefly  stated  thus  :  An  ex- 
ecutor, in  proving  the  will  and  in  accepting  the  office  from 
his  immediate  testator,  accepts  not  only  all  the  trusts  im- 
posed by  the  immediate  will  under  which  he  acts,  but  also 
all  the  trusts  in  respect  to  the  assets  which  come  to  his  hands 
with  which  his  immediate  testator  was  charged  ;  and  he  must 
execute  those  trusts  until  he  is  relieved  by  a  new  appoint- 
ment in  the  Probate  Court,  and  a  settlement  and  payment 
over  of  the  assets.  He  will  not  be  allowed  to  accept  the 
trusts  created  by  his  immediate  testator,  and  to  repudiate 
those  with  which  his  testator  was  liimself  charged.^  And 
so,  a  trustee  cannot  limit  his  acceptance  and  liability  to  any 
particular  portion  of  the  trust.      For  if  he  acts  at  all,  though 

1  In  the  Goods  of  Perry,  2  Curt.  655,  Goods  of  Beer,  15  Jiir.  160; 
Shep.  Touch,  by  Preston,  461 ;  Wankford  v.  Wankford,  Freem.  520;  Hay- 
tan  u.  Wolfe,  Cro.  Jac.  614;  Palm.  156;  Hutt.  30;  Schenck  v.  Schenck, 
16  N.  J.  Eq.  174 ;  Maudlin  v.  Armisted,  14  Ala.  702 ;  Nichols  i'.  Camp- 
bell,  10  Gratt.  561.  See  Knight  v.  Loomis,  30  Me.  204,  where  it  is  said 
that  an  administrator  de  bonis  under  the  will  of  a  trustee  is  not  constituted 
trustee  by  his  appointment. 

2  Worth  V.  McAden,  1  Dev  &  Bat.  199;  Mitchell  v.  Adams,  1  Ired. 
(Law)  298;  King  )'.  Lawrence,  14  Wis.  238;  Schenck  v.  Schenck,  1  Green, 
Ch.  174. 

.       356 


CHAP.  IX.]  DISCLAIMER    OP    THE    TRUST.  [§  266. 

he  disclaim  a  part  he  will  be  held  to  have  accepted  the  en- 
tire trust ;  ^  as  if  one  is  appointed  trustee  of  real  and  per- 
sonal estate,  and  he  deals  with  the  personal,  he  will  be 
deemed  to  have  accepted  the  entire  trust ;  ^  and  so,  if  the 
same  instrument  appoints  him  to  two  distinct  trusts,  he  can- 
not divide  them.^ 

§  265.  If  a  person  wrongfully  interferes  with  the  assets  of 
a  deceased  person,  he  may  become  an  administrator  or  ex- 
ecutor de  son  tort.  So,  if  a  person  by  mistake  or  otherwise 
assumes  the  character  of  trustee,  and  acts  as  such,  when  the 
office  does  not  belong  to  him,  he  thereby  becomes  a  trustee 
de  son  fort,  and  he  may  be  called  to  account  by  the  cestui  que 
trust  for  the  assets  received  under  color  of  the  trust.* 

§  266.  When  trustees  have  accepted  the  office,  they  ought 
to  bear  in  mind  that  the  law  knows  no  such  person  as  a  pas- 
sive trustee,  and  that  they  cannot  sleep  upon  their  trust.  If 
such  trustee  remains  quiet  for  any  reason,  and  suffers  some 
other  to  do  all  the  business,  and  yet  executes  formal  papers, 
as  a  power  of  attorney  for  the  sale  of  stock,  or  a  release  or 
discharge  of  mortgages  on  payment,  he  is  answerable  for  the 
money  as  if  he  had  conducted  the  business.  And  further, 
the  trustee  should  make  himself  acquainted  with  the  nature 
and  circumstances  of  the  property ;  for  though  he  is  not 
responsible  for  anything  that  happens  before  his  acceptance 
of   the  trust,^  yet  if  a  loss  occurs  from  any  want  of  atten- 

1  Urch  V.  Walker,  3  M.  &  Cr.  702;  Read  v.  Truelove,  Arab.  417;  Doyle 
V.  Blake,  2  Sch.  &  Lef.  231;  Van  Horn  v.  Fonda,  5  Johns.  Ch.  403; 
Champlin  v.  Givens,  1  Rice,  Eq.  154;  Cummins  v.  Cummins,  3  Jon.  &  La. 
64;  Latimer  v.  Hanson,  1  Bland,  51;  Flint  u.  Clinton  Co.,  12  N.  H.  432. 

2  Ward  V.  Butler,  2  Moll.  533. 

8  Urch  V.  Walker,  3  M.  &  Cr.  702  ;  Judice  v.  Prevost,  18  La.  An.  601. 

*  Pearce  v.  Pearce,  22  Beav.  248;  Life  Association  v.  Siddall,  3  De  G., 
F.  &  J.  58;  Hennessey  v.  Bray,  33  Beav.  96  ;  Rackham  v.  Siddall,  16  Sim. 
297;  1  Mac.  &G.  607. 

6  Greaves  v.  Strahan,  8  De  G.,  M.  &  G.  291;  Prindle  v.  Holcombe,  45 
Conn.  Ill;  Stevens  v.  Gaylord,  11  Mass.  269;  Ips.  Manuf.  Co.  v.  Story,  5 
Met.  310;  Leland  v.  Felton,  1  Allen,  531 ;  Kinney  v.  Ensign,  18  Pick.  236. 

857 


§  268.]  DISCLAIMER    OF    THE    TRUST.  [CHAP,  IX. 

tion,  care,  or  diligence  in  him  after  liis  acceptance,  he  may 
be  held  responsible  for  not  taking  such  action  as  was  called 
for.i 

§  267.  It  has  been  seen  that  a  person  named  as  trustee, 
either  in  a  deed  or  will,  may  decline  the  office  and  disclaim 
the  estate.^  If  he  does  so,  he  ought  to  execute  an  effectual 
disclaimer  without  delay,  for  after  a  long  interval  of  time  it 
will  be  presumed  that  he  accepted  the  office.^  If  a  person 
knows  of  his  appointment,  and  lies  by  for  a  long  time,  it  is 
for  the  court  to  say  whether,  under  all  the  circumstances,  such 
acquiescence  was  an  assent  to  the  trust.*  But  if  a  trustee 
does  no  act  in  the  office,  there  is  no  rule  that  requires  him 
to  disclaim  within  any  particular  time.  Thus,  he  may  dis- 
claim after  sixteen  years  if  the  delay  can  be  so  explained  as 
to  rebut  the  presumption  of  an  acceptance.^  A  disclaimer 
will  take  effect  as  of  the  time  of  the  gift,  and  will  prevent 
the  estate  from  vesting  in  the  trustee  disclaiming ;  therefore, 
a  disclaimer,  whenever  made,  will  relate  back  to  the  time  of 
the  gift,  if  the  party  disclaiming  has  done  no  act  which  may 
be  construed  into  an  acceptance.  It  is  therefore  immaterial 
when  the  mere  formal  instrument  of  disclaimer  is  executed, 
provided  that  nothing  has  intervened  to  vest  the  estate  in  the 
trustee.^ 

§  268.  If  a  person  has  once  accepted  the  office,  either  ex- 
pressly or  by  implication,  it  is  conclusive ;  and  he  cannot 
afterwards,  by  disclaimer  or  renunciation,  avoid  its  duties  and 
responsibilities.'     And  the  reason  is,  that,  if  the  estate  has 

1  England  v.  Downes,  6  Beav.  269,  279;  Townley  v.  Bond,  2  Conn  & 
Laws.  405;  James  v.  Fiearson,  1  Y.  &  C.  Ch.  Ca.  270;  Taylor  v  Milling- 
ton,  4  Jur.  (n.  s.)  204;  Ex  parte  Greaves,  25  L.  J.  53;  2  Jur  (n.  s  )  253; 
Malzy  V.  Edge,  2  Jur.  (n.  s.)  8. 

2  Ante,  §  259.  3  Ibid. 

*  Doe  V.  Harris,  16  M.  &  W.  517;  Paddon  v.  Richardson,  7  De  G.,  M. 
&  G.  563;  James  v.  Frearson,  1  Y.  &  C.  Ch.  Ca.  370. 

5  Noble  V.  Meymott,  14  Beav.  471;  Doe  v.  Harris,  16  M.  &  W.  517. 

6  Stacey  v.  Elph,  1  M.  &  K.  195-199. 

'  Conyngham  r.  Conyngham,  1  Ves.  522;  Read  v.  Truelove,  Amb  417; 

S58 


CHAP.  IX.]  DISCLAIMER   OF   THE   TRUST.  [§  269. 

once  vested  in  the  trustee,  it  cannot  be  divested  by  a  mere 
disclaimer  or  renunciation,  nor  can  he  convey  the  estate 
against  the  consent  of  the  cestuis  que  trust  without  commit- 
ting a  breach  of  trust,  unless  the  instrument  creating  the  trust 
gives  him  that  power,  or  unless  there  is  the  decree  of  a  court 
to  that  effect.  In  such  case  the  trustee  may  resign  the  trust, 
and  convey  the  estate  in  the  manner  pointed  out  in  the  instru- 
ment creating  the  trust,  if  it  speaks  upon  that  subject ;  or  the 
trustee  may  decline  the  office,  and  convey  the  estate  to  a  new 
trustee,  by  the  agreement  of  all  the  parties  in  interest,  if  they 
are  competent  to  act,  and  consent  to  the  arrangement.  But 
if  the  parties  do  not  consent,  or  if  there  are  minor  children, 
married  women,  insane  persons,  or  others  incompetent  to  act, 
a  trustee,  after  he  has  once  accepted  the  office,  can  only  be 
discharged  by  decree  of  a  court  having  jurisdiction,  and  upon 
proper  proceedings  had.^ 

§  269.  If  a  person  accepts  a  trust  and  dies,  his  heir  cannot 
renounce  or  disclaim  it.  The  acceptance  vested  the  estate  in 
the  trustee,  and  the  law  at  his  death  cast  it  upon  the  heir ; 
and  the  heir  cannot  divest  or  repudiate  the  estate  by  a  mere 
disclaimer.2  But  if  the  heir  is  so  named  in  the  original  in- 
strument of  trust,  that  he  takes  the  estate  bi/  purchase,  and 
not  by  inheritance  or  descent,  or  if  he  comes  in  under  some 
arrangement,  as  a  special  occupant,  he  may  use  his  own  judg- 
ment in  accepting  or  refusing  the  estate  charged  with  the 
trust.^  In  most  of  the  United  States  there  are  special  pro- 
Doyle  V.  Blake,  2  Sch.  &  Lef.  231;  Stacey  r.  Elph,  1  M.  &  K.  195;  Cruger 
V.  Halliday,  11  Paige,  314  ;  Shepherd  ;;.  McEvers,  4  Johns.  Ch.  136  ;  Lati- 
mer V.  Hanson,  1  Bland,  51 ;  .Tones  v.  Stockett,  2  Bland,  409;  Chaplin  v. 
Givens,  1  Rice,  Eq.  133;  Perkins  v.  McGavock,  3  Hay,  265;  Drane  v. 
Gunter,  19  Ala.  731;  Strong  v.  Willis,  3  Fla.  124;  Thatcher  ;;.  Corder,  2 
Keyes,  157;  Armstrong  y.  Merrill,  14  Wall.  138. 

^  Courtenay  v.  Courtenay,  Jo.  &  Lat.  519;  Foreshow  v.  Higginson,  20 
Beav.  485;  Greenwood  v.  Wakeford,  1  Beav.  576;  Coventry  v.  Coventry, 
1  Keen,  758;  Cruger  v.  Halliday,  11  Paige,  314;  Drane  v.  Gunter,  19  Ala. 
731;  Shepherd  v.  McEvers,  4  Johns.  Ch.  130;  Diefendorf  r.  Spraker,  10 
N.  Y.  246 ;  Re  Bernstein,  3  Redf .  (N.  Y.)  20. 

2  Co.  Litt.  9  a;  3  Cru.  Dig.  318;  Humphrey  v.  Morse,  2  Atk.  408. 

8  Creagh  v.  Blood,  3  Jou.  &  La.  170. 

359 


§  270.]  DISCLAIMER   OP   THE   TRUST.  [CHAP.  IX. 

visions  by  statute  regulating  the  resignation  of  trustees,  and 
the  proceedings  to  be  had  upon  their  death,  for  the  preserva- 
tion of  the  trust  estates  and  the  appointment  of  new  trustees. 
If  a  person  is  appointed  trustee  and  has  neither  accepted  nor 
disclaimed  during  his  life,  it  is  an  open  question  whether  his 
heir  or  personal  representative  can  disclaim  after  his  death. 
The  question  was  raised  in  Goodson  v.  Ellison,^  but  was  left 
undecided.  Mr.  Hill  thinks  that  a  disclaimer  by  the  heir  may 
be  supported  on  principle.^  A  later  case  seems  strongly  to 
imply  that  the  heir  cannot  disclaim.^  If  an  acting  trustee 
dies,  a  person  named  cotrustee  with  him  may  disclaim  after 
his  death,  if  the  one  disclaiming  has  done  no  act  amounting 
to  an  acceptance.^ 

§  270.  It  was  the  clear  opinion  of  Lord  Coke,  that  if  a  free- 
hold vested  in  a  person  by  feoffment,  grant,  or  devise,  it  could 
not  be  divested  except  by  matter  of  record ;  and  this  rule  was 
established  in  order  that  a  suitor  might  know,  with  more  cer- 
tainty, who  was  the  tenant  to  the  praecipe  ;  ^  but,  as  a  gift  is 
not  perfect  in  law  until  it  is  accepted  by  the  assent  of  the 
donee,  a  disclaimer  operates  as  evidence  that  the  donee  never 
assented,  and  consequently  that  the  estate  never  vested  In 
him.  Accordingly,  it  is  now  established  that  a  parol  dis- 
claimer is  sufficient  in  all  cases  of  a  gift  by  deed  or  will  of 
both  real  and  pei'soual  estate.^    And  so  a  trust  may  be  repu- 

1  Goodson  V.  Ellison,  3  Russ.  583,  587. 

2  Hill  on  Trustees,  222  (4th  ed.) 
8  King  V.  Phillips,  16  Jur.  1080. 

4  Stacey  v.  Elph,  1  M.  &  K.  195. 

5  Butler  &  Baker's  Case,  3  Co.  26  a,  27  a;  Anon.  4  Leon.  207;  Shep. 
Touch.  285,  452;  Bonifaut  v.  Greenfield,  Godb.  79;  Siggers  f.  Evans,  5 
El.  &  Bl.  380. 

6  Townson  v.  Tickell,  3  B.  &  Al.  31;  Stacey  v.  Elph,  1  M.  &  K.  198; 
Bonifant  r.  Greenfield,  Cro.  Eliz.  80;  Smith  v.  Smith,  6  B.  &  C.  112; 
Begbie  v.  Crook,  2  Bing.  N.  C.  70;  2  Scott,  128;  Shep  Touch.  282.  452; 
Smith  V.  Wheeler,  1  Ventr.  128;  Thompson  v.  Leach,  2  Ventr.  198;  Rex 
V.  Wilson,  5  Man.  &  R.  140;  Small  v.  Marwood,  4  Man.  &  R.  190  ;  Fos- 
ter V.  Dawber,  1  Dr.  &  Sm.  172;  Re  Ellison's  Trust,  2  Jur.  (n.  s.)  62; 
Doe  V.  Smith,  9  D.  &  R  136;  Bingham  v.  Clanmorris,  2  :Mo11.  253:  Pep- 
percorn V.  Wayman,  5  De  G.  &  Sm.  230 ;  Doe  v.  Harris,  16  M.  &  W.  517; 

360 


CHAP.  IX.]  EFFECT   OF    A    DISCLAIMER.  [§  271. 

diated  without  an  express  disclaimer,  as  by  evidence  of  the 
conduct  of  the  party  amounting  to  a  refusal  of  the  office,^  or 
by  any  conduct  inconsistent  with  an  acceptance  ;  and  a  dis- 
claimer may  be  presumed  after  a  long  neglect  to  qualify  or 
refusal  to  act.^  But  the  parol  expressions  of  a  refusal  of  the 
trust,  or  parol  evidence  of  conduct  inconsistent  with  an  ac- 
ceptance, must  be  unequivocal,  and  extend  to  a  renunciation 
of  all  interest  in  the  property ;  for  if  such  refusal  or  conduct 
is  coupled  with  a  claim  to  the  estate  of  another  character,  it 
will  not  amount  to  a  disclaimer.^  But  a  person  would  act 
very  imprudently  who  allowed  so  important  a  question,  as 
whether  he  was  a  trustee  or  not,  to  be  a  matter  of  inference 
and  construction  from  conversations  or  conduct."* 

§  271.  A  disclaimer  should  be  by  deed  or  other  writing  that 
admits  of  no  ambiguity,  and  is  certain  evidence.^  And  the 
instrument  should  be  a  disclaimer  and  not  a  conveyance  ;  for 
if  the  trustee  attempts  to  convey  the  estate,  he  may  be  held 
to  have  accepted  the  trust  by  the  same  act  which  was  in- 
tended to  be  a  refusal  of  the  office.^  Although  Lord  Eld  on 
expressed  the  opinion,  which  seems  to  be  the  common-sense 
view,  that  if  the  intention  of  the  instrument  is  to  disclaim,  it 
ought  to  receive  that  construction,  although  it  is  in  form 
a  conveyance,'^  yet  this  distinction  has  not  been  acted  on. 

Thompson  v.  Meek,  7  Leigh,  419;  Roseboom  v.  Moshier,  2  Denio,  61; 
Comm.  v.  Mateer,  16  Serg.  &  R.  416 ;  Nicolson  v.  Wordsworth,  2  Swanst. 
369 ;  Adams  v.  Taunton,  5  Madd.  435;  Miles  v.  Neave,  1  Cox,  159  ;  Sher- 
ratt  V.  Bentley,  1  Russ.  &  M.  655 ;  Norway  v.  Norway,  2  M.  &  K.  278 ; 
Bray  v.  West,  9  Sim.  429. 

1  Stacey  v.  Elph,  1  M.  &  K.  195 ;  Ayres  v.  Weed,  16  Conn.  291  ;  Thorn- 
ton V.  Winston,  4  Leigh,  152 ;  Wardwell  v.  McDonell,  31  111.  3G4 ;  Williams 
V.  King,  43  Conn.  572  and  cases  cited. 

2  Marr  v.  Peay,  2  Murph.  85. 

8  Doe  V.  Smith,  6  B.  &  C.  112;  Judson  v.  Gibbons,  5  Wend.  224. 

*  Stacey  v.  Elph,  1  M.  &  K.  199  ;  In  re  Tryon,  7  Beav.  496. 

6  Stacey  v.  Elph,  1  M.  &  K.  199. 

«  Crewe  v.  Dicken,  4  Ves.  97 ;  Urch  v.  Walker,  3  M.  &  C.  702. 

■^  Nicolson  V.  Wordsworth,  2  Swanst.  372;  Att'y-Gen.  v.  Doyley,  2  Eq. 
Ca.  Ab.  194;  Hussey  v.  Markham,  t.  Finch,  258;  Sharp  v.  Sharp,  2  B. 
&  A.  405;  Richardson  v.  Ilulbert,  1  Anst.  05. 

361 


§  272.]  EFFECT   OF   A   DISCLAIMER.  [CHAP.  IX. 

A  trust  may  also  be  disclaimed  at  the  bar  of  the  court  and  by 
counsel,  or  by  answer  in  chancery .^ 

§  272.  If  a  person  is  nominated  as  trustee  in  a  will,  and  a 
benefit  is  also  given  to  him  independent  of  the  office,  he  can 
claim  the  testator's  bounty,  and  yet  disclaim  the  burden  of 
the  trust,^  as  an  executor  who  is  also  a  legatee  may  renounce 
the  executorship  and  yet  claim  the  legacy  ;  but  if  the  benefit 
is  annexed  to  the  office  of  trustee  or  executor,  and  is  not  a 
gift  to  the  individual,  the  person  named  as  executor  or  trustee 
cannot  claim  the  benefit  if  he  decline  the  office.^  And  a  trus- 
tee who  has  power,  under  certain  circumstances,  to  appoint  a 
colleague  and  successor  to  execute  the  trusts,  may  disclaim 

1  Ladbrook  v.  Bleaden,  16  Jur.  Gofl;  Foster  v.  Dawber,  1  Dr.  &  Sm. 
172;  Re  Ellison's  Trust,  2  Jur.  (x.  s.)  G2;  Hickson  v.  Fitzgerald,  1  Moll. 
14;  Norway  v.  Norway,  2  U.  &  K.  278;  Sherratt  v.  Bentley,  1  R.  &  M. 
655,  Legg  V.  Mackrell,  1  Gif.  166;  Bray  v.  West,  9  Sim.  429;  Clemens  v. 
Clemens,  60  Barb.  306. 

2  Pollexfen  v.  Moore,  3  Atk.  272;  Andrew  r.  Trinity  Hall,  9  Ves.  525; 
Talbot  V.  Radnor,  3  M.  &  K.  524;  Warren  v.  Rudall,  1  John.  &  H.  1; 
Buel  V.  Yelverton,  L.  R.  13  Eq.  131;  Tn  re  Isabella  Denby,  3  De  G.,  F. 
&  J.  350 ;  Burgess  v.  Burgess,  1  Coll.  367. 

^  It  is  an  established  rule  that  bequests  to  individuals  are  considered, 
prima  facie,  to  be  given  to  them  in  that  character,  —  a  presumption  to  be 
repelled  by  the  nature  of  the  legacies  or  other  circumstances  arising  iu 
the  will.  Roper  on  Leg.  780;  Slaney  v.  Watney,  L.  R.  2  Eq.  418.  It  is 
so,  even  if  the  persons  are  described  in  the  legacy  as  "my  good  friends." 
Read  v.  Devaynes,  3  Bro.  Ch.  95.  Or  if  the  legacy  is  given  in  the  will 
among  other  legacies.  Calvert  v.  Sebhon,  4  Beav.  222.  Or  if  it  is  given 
in  a  codicil  naming  the  person  as  an  individual  and  not  naming  his 
office.  Stackpole  v.  Howell,  13  Ves.  417;  per  Ch.  J.  Chapman  in  Kirk- 
land  V.  Narramore,  105  Mass.  31.  And  see  Lewis  v.  Matthews,  L.  R.  8 
Eq.  277  ;  Abbott  v.  JNIassie,  3  Ves.  148  ;  Harrison  v.  Rowley,  4  Ves.  212 ; 
Cockerell  i\  Barber,  1  Sim.  23 ;  5  Russ.  585 ;  Barnes  v.  Kirkland,  8  Gray, 
512;  Rothmaler  v.  Myers,  4  Des.  255;  Dix  v.  Read,  1  S.  &  S.  237;  Pig- 
gott  r.  Green,  6  Sim.  72;  Billingslea  v.  Moore,  14  Ga.  370;  Hall  v.  Gush- 
ing, 9  Pick.  395;  Newcomb  v.  Williams,  9  Met.  525;  Dixon  v.  Homer,  Id. 
420 ;  Brydges  v.  Wotton,  1  V.  &  B.  134  ;  Morris  v.  Kent,  2  Ed.  Ch.  175; 
In  re  Hawken's  Trust,  33  Beav.  570;  Hanbury  v.  Spooner,  5  Beav.  630; 
Griffiths  V.  Pruen,  11  Sim.  202;  King  v.  Woodhull,  3  Edw.  Ch.  79;  Brown 
V.  Higgs,  4  Ves.  708;  Thayer  v.  Wellington,  9  Allen,  283,  295;  Cranberry 
V.  Cranberry,  1  Wash.  246. 

362 


CHAP.  IX.]  EFFECT    OF    A    DISCLAIMER.  [§  273. 

the  trusts,  except  the  power  of  nominating  other  persons 
to  be  trustees  m  place  of  those  originally  appointed,  and  an 
appointment  by  one  who  has  never  acted  except  to  make  the 
nomination  will  be  held  valid. ^ 

§  273.  If  a  person  appointed  trustee  effectually  disclaims,  it 
is  as  if  he  had  never  been  named  in  the  instrument.  All  par- 
tics  are  placed  in  the  same  situation  in  respect  to  the  trust 
property  as  if  his  name  had  not  been  inserted  in  the  deed  or 
will.^  Therefore,  if  one  of  the  several  trustees  disclaims,  the 
entire  estate  will  vest  in  the  remaining  trustee  or  trustees  ;  ^ 
and  if  all  the  trustees  or  a  sole  trustee  disclaim,  the  estate 
will  vest  in  the  heir  subject  to  the  trusts.*  The  settlor  must 
be  presumed  to  have  known  the  effect  of  a  disclaimer  by  the 
trustees  named  by  him.^  It  will  be  seen  from  this,  that  a  dis- 
claimer operates  retrospectively,  and  vests  the  estate,  ah  initio, 
in  those  trustees  only  who  accept  the  trust,  and,  in  the  ab- 
sence of  an  acceptance  by  any  of  the  trustees,  in  the  heir.^  It 
follows,  that  all  the  powers  and  authority  vested  in  the  trus- 
tees, as  such,  which  are  incidental  or  requisite  to  the  execution 
of  the  trusts,  are  vested  in  those  trustees  only  who  accept  the 
office.  They  may,  therefore,  grant  leases  of  the  trust  estate,'^ 
and  sell  and  convey  the  same,^  and  give  valid  receipts  for  the 

1  In  re  Hadley,  5  De  G.  &  Sm.  67  ;  9  Eng.  L.  &  Eq.  67. 

2  Townson  v.  Tickell,  3  B.  &  Al.  31 ;  Begbie  v.  Crook,  2  Bing.  N.  C. 
70;  Clemens  v.  Clemens,  60  Barb.  366;  Hawkins  v.  Kemp,  3  East,  410  ; 
Smith  V.  Wheeler,  1  Ventr.  128;  Legett  v.  Hunter,  25  Barb.  81;  19  N.  Y. 
415;  Goss  v.  Singleton,  2  Head,  67. 

8  Ibid.  ;  Bonifant  v.  Greenfield,  Cro.  Eliz.  80 ;  Denne  v.  Judge,  11 
East,  288 ;  Ellis  v.  Boston,  Hartford,  &  Erie  R.  R.  Co.,  107  IMass.  13. 

*  Stacey  v.  Elph,  1  M.  &  K.  195;  Austin  v.  Martin,  29  Beav.  .523; 
Goss  V.  Singleton,  2  Head,  67.  In  New  York  it  rests  in  the  court  by 
statute. 

^  Browell  v.  Reed,  1  Hare,  435. 

6  Peppercorn  v.  Wayman,  5  De  G.  &  Sm.  230;  Stacey  v.  Elph,  1  M.  & 
K.  195;  Dunning  v.  Ocean  Nat.  Bk.,  6  Lansing,  296. 

T  Small  V.  Marwood,  9  B.  &  Cr.  307;  Bayly  v.  Gumming,  10  Ir.  Eq. 
410. 

8  Cooke  V.  Crawford,  13  Sim.  91;  Adams  v.  Taunton,  5  Madd.  435-, 
Crewe  v.  Dicken,  4  Ves.  97;  Nicolson  v.  Wordsworth,  2  Swanst.  378. 

3G3 


§  274.J  EFFECT   OF   A    DISCLAIMER,  [CHAP.  IX. 

purchase-money,^  and  the  disclaiming  trustee  need  not  join 
in  the  deeds,  nor  can  his  concurrence  be  required  or  enforced. 
But  it  must  be  known  whether  one  of  several  trustees  dis- 
claims or  accepts  before  it  can  be  known  whether  the  acts  of 
the  others  are  valid  or  not.''*  And  it  is  immaterial  that  a  dis- 
claiming trustee  is  expressly  named  as  one  of  the  persons  by 
whom  a  power  connected  with  the  trust  is  to  be  exercised  :  ^ 
a  power  given  to  the  trustees,  or  the  survivor  of  them,  may 
be  exercised  by  an  acting  trustee,  although  the  disclaiming 
trustee  is  still  alive.^  But  if  the  power  is  given  to  the  j^erson 
and  not  to  the  office,  a  disclaimer  by  one  will  not  vest  the 
power  in  the  other  trustees,  so  as  to  enable  them  to  exercise 
it.  Powers  that  imply  a  personal  confidence  in  the  donee 
must  be  exercised  by  the  persons  in  whom  the  confidence  is 
placed,  and  to  whom  the  power  is  given.^  Such  powers, 
therefore,  will  not  vest  by  the  disclaimer  of  one  in  his  co- 
trustees, but  will  be  absolutely  gone.^ 

§  274.  If  a  trustee  once  accepts  the  office,  he  cannot  by 
his  sole  action  be  discharged  from  its  duties.  Having  once 
entered  upon  the  management  of  the  trust,  he  must  continue  to 
perform  its  duties  until  he  is  discharged  in  one  of  three  ways : 
first,  he  may  be  removed  and  discharged,  and  a  new  trustee 
substituted  in  his  place,  by  proceedings  before  a  court  having 
jurisdiction  over  the  trust ;  second,  he  may  be  discharged, 
and  a  new  trustee  appointed,  by  the  agreement  and  concur- 
rence of  all  the  parties  interested  in  the  trust ;  and,  third, 
he  may  be  discharged,  and  a  new  trustee  appointed,  in  the 

1  Hawkins  n.  Kemp,  3  East,  410  ;  Smith  v.  Wheeler,  1  Ventr.  128;  2 
Yen.  &  Pur.  850;  Vandever's  App.,  8  Watts  &  S.  405. 

2  Moir  V.  Brown,  14  Barb.  .39. 

2  Crewe  v.  Dicken,  4  Yes.  100;  Adams  r.  Taunton,  5  Madd.  435. 

*  Sharp  V.  Sharp,  2  B.  &  Cr.  405;  Peppercorn  v.  Wayman,  5  De  G.  & 
Sm.  230. 

5  Cole  V.  Wade,  16  Ves.  44;  Xewman  v.  Warner,  1  Sim.  (n.  s.)  457; 
Eaton  V.  Smith,  2  Beav.  236;  Att'y-Gen.  v.  Doyley,  2  Eq.  Ca.  Ab.  194; 
Walsh  V.  Gladstone,  14  Sim.  2 ;  Wilson  r.  Pennock,  27  Pa.  St.  238. 

®  Eaton  V.  Smith,  2  Beav.  2;]6;  Lancashire  v.  Lancashire,  2  Phill.  657; 
Robson  V.  Flight,  33  Beav.  2G8. 

364 


CHAP.  IX.]  REMOVAL    OF    A    TRUSTEE.  [§  275. 

manner  pointed  out  in  the  insti'ument  creating  the  trust,  if 
it  makes  any  provisions  upon  that  subject. ^  Mere  abandon- 
ment of  the  trust  will  not  vest  the  trust  property  in  the 
hands  of  his  cotrustee,  nor  relieve  a  trustee  from  liability.''^ 
If  a  trustee  conveys  away  the  trust  estate  to  another,  even 
his  cotrustee,  and  appoints  another  to  execute  the  trust,  the 
conveyance  may  pass  the  naked  legal  title,  but  it  will  have 
no  effect  in  relieving  the  original  trustee  from  responsibility, 
if  the  transaction  is  not  sanctioned  by  the  decree  of  the  court, 
or  by  the  consent  of  all  parties  interested  ;  and  it  will  trans- 
fer no  authority  to  the  person  thus  appointed,  except  to  make 
him  a  trustee  de  son  tort,  if  he  attempts  to  interfere  with  the 
trust  estate.^ 

§  275.  The  cestui  que  trust,  and  all  other  persons,  although 
contingently  interested  in  the  remainder  or  reversion  of  trust 
property,*  are  entitled  to  have  the  custody  and  the  adminis- 
tration of  it  confided  to  projjer  persons,  and  to  a  proper  num- 
ber of  persons.  Thus  if  a  trustee  originally  appointed  by  will 
die  in  the  testator's  lifetime,  a  new  trustee  may  be  appointed 
by  the  court  to  take  the  trust  property ;  or  if  the  original  num- 
ber of  trustees  is  reduced  by  death,  the  cestui  que  trust  may 
call  upon  the  court  to  appoint  new  trustees  in  place  of  those 
deceased.^     So  if  a  trustee  disclaims,  or  refuses  to  act  after 

1  Craig  V.  Craig,  3  Barb.  Ch.  76;  Drane  v.  Gunter,  19  Ala.  731; 
Thatcher  v.  Candee,  3  Keyes  (N.  Y.),  157;  Shepherd  v.  McEvers,  4  Johns. 
Ch.  186;  Cruger  v.  Halliday,  11  Paige,  319;  Ridgeley  v.  Johnson,  11 
Barb.  527;  AVebster  ?;.  Vandeventer,  6  Gray,  428;  Pearce  v.  Pearce,  22 
Beav.  248;  Sugden  v.  Crossland,  3  Sm.  &  Gif.  192;  Jones  v.  Stockett,  2 
Bland,  409;  Perkins  v.  McGavock,  3  Hay.  265. 

2  Webster  v.  Vandeventer,  6  Gray,  428;  Cruger  v.  Halliday,  11  Paige, 
314;  Thatcher  v.  Candee,  3  Keyes,  157. 

8  Pearce  v.  Pearce,  22  Beav.  248 ;  Sugden  v.  Crossland,  3  Sm.  &  Gif. 
192;  Braybrooke  v.  Inskip,  8  Ves.  417;  Chalmers  v.  Bradley,  1  J.  &  W. 
68;  Williams  v.  Parry,  4  Russ.  272;  Adams  i'.  Paynter,  1  Coll.  532;  Cruger 
V.  Halliday,  11  Paige,  314;  Ardill  v.  Savage,  1  Ir.  Eq.  79. 

*  Finlay  v.  Howard,  2  Dr.  &  W.  490;  Cooper  v.  Day,  1  Rich.  Eq.  26  ; 
In  re  Sheppard's  Trusts,  4  De  G.,  F.  &  J.  423;  Rennie  v.  Ritchie,  12  CI. 
&  Fin.  204. 

^  Buchanan  v.  Hamilton,  5  Ves.  722;  Hibbard  v.  Lamb,  Amb.  309; 

365 


§  275.]  FOR    WHAT    CAUSES    MAY   BE    REMOVED.        [CHAP.  IX. 

having  once  accepted  ,i  or  becomes  so  situated  tliat  lie  cannot 
effectually  execute  the  office,  as  by  becoming  a  permanent 
resident  abroad,^  or  by  absconding ;  ^  or  if  a  female  trustee 
marry  ;^  or  if  the  trustees  of  a  church  or  chapel  embrace 
opinions  contrary  to  the  founder's  intentions  ;  °  or  if  the  trus- 
tee becomes  bankrupt,*^  or  misconducts  himself,'  or  deals  with 

Webb  r.  Shaftesbury,  7  Ves.  487;  Millard  v.  Eyre,  2  Yes.  Jr.  94;  De 
Peyster  v.  Clendiniug,  8  Paige,  296  ;  Dixon  v.  Homer,  12  Ciish.  41;  Mass. 
Gen.  Hos.  v.  Aniory,  12  Pick.  445;  Greene  v.  Borland,  4  ]\Iet.  339. 

1  Wood  V.  Stane,  8  Price,  613;  JNIoggeridge  v.  Grey,  Xels.  42;  Anon. 
4  Ir.  Eq.  700;  Travell  v.  Danvers,  Finch,  380;  Irvine  v.  Dunham,  111 
U.  S.  327. 

2  O'Reilly  v.  Alderson,  8  Hare,  101 ;  Re  Ledwick,  6  Tr.  Eq.  5G1 ;  Com., 
&c.  V.  Archbold,  11  Ir.  Eq.  187;  Lill  v.  Neafie,  31  111.  101;  In  re  Rey- 
nolds' Settlement,  L.  R.  7  Ch.  224;  Maxwell  v.  Finnie,  6  Cold.  434;  Curtis 
V.  Smith,  60  Barb.  9 ;  Mennard  i'.  Wilford,  1  Sra.  &  Gif.  426  ;  Re  Stewart, 
8  W.  R.  297;  Re  Harrison's  Trusts,  22  L.  J.  Ch.  69;  Dorsey  v.  Thomp- 
son, 37  Md.  25  ;  Ketchum  v.  IMobile  &  Ohio  R.  R.,  2  Woods,  532.  The 
voluntary  removal  to,  and  becoming  a  resident  of,  a  foreign  country  by  a 
trustee  under  a  mortgage  by  a  railroad  company,  incapacitates  him  and 
vacates  the  office;  and  if,  after  such  removal,  he  attempts  to  prosecute 
suit  in  Federal  court  the  State  court  will  enjoin  him.  Farmers'  Loan  and 
Trust  Co.  V.  Hughes,  11  Hun  (N.  Y.),  130.  And  where  the  cestui  que 
trust  was  prohibited  by  law  from  coming  into  the  State,  the  court,  on  the 
trustee's  petition,  discharged  him,  and  appointed  one  living  in  the  same 
State  with  the  cestui  que  trust.     Ex  parte  Tunno,  1  Bailey,  Ch.  395. 

8  Millard  v.  Eyre,  2  Ves.  Jr.  94;  Gale's  Peti.  R.  M.  Charlt.  109;  Re 
Mais,  16  Jur.  008. 

4  Lake  v.  De  Lambert,  4  Ves.  592;  72e  Kaye,  L.  R.  1  Ch.  387.  By 
chap.  409  of  the  Acts  of  1869,  a  married  woman  in  Massachusetts  may  be 
appointed  executrix,  administratrix,  guardian,  or  trustee,  with  the  written 
assent  of  her  husband ;  and  the  marriage  of  a  single  woman  who  holds 
such  trusts  shall  not  extinguish  her  authority,  but  her  sureties  on  petition 
may  be  discharged,  and  she  may  be  required  to  give  new  ones. 

^  Att'y-Gen.  v.  Pearson,  7  Sim.  309;  Att'y-Gen.  v.  Shore,  Id.  317; 
Rose  V.  Crockett,  14  La.  An.  811.  If  individuals  pay  their  own  money, 
and  take  a  deed  to  themselves  in  trust  for  a  parish,  the  courts  will  not 
appoint  a  trustee  to  fill  a  vacancy ;  but  if  the  parish  paid  the  money,  the 
court  will  appoint.     Draper  v.  Minor,  36  Mo.  290. 

^  Bainbrigge  v.  Blair,  1  Beav.  495;  In  re  Roche,  1  Con.  &  Laws.  306; 
Com.,  &c.  V.  Archbold,  11  Ir.  Eq.  187;  Harris  i^.  Harris,  29  Beav.  107; 
Re  Bridgman,  1  Dr.  &  Sm.  164. 

'  Mayor  of  Coventry  v.  Att'y-Gen.,  7  Bro.  P.  C.  235;  Buckeridge  e. 
366 


CHAP.  IX.]        FOR    WHAT    CAUSES    MAY    BE    REMOVED.  [§  275. 

the  trust  fund  for  his  own  personal  profit  and  advancement,^ 
or  commits  a  breach  of  trust,^  or  refuses  to  apply  and  pay  over 
the  income  as  directed,^  or  if  he  fails  to  invest  as  directed,*  or 
permits  a  cotrustee  to  commit  a  breach  of  trust,^  or  if  he  loans 
the  trust  funds  on  personal  security,  although  the  cestui  que 
trust  approves  of  it,^  or  refuses  to  obey  an  order  of  court,'^ 
or  if  trustees  of  a  mortgage  for  the  security  of  bond-holders 
of  a  railroad  or  other  corporation  refuse  to  foreclose  or  take 
other  steps ;  ^  or  if  a  trustee  make  a  grossly  unreasonable 
claim  upon  the  trust  property  adverse  to  the  cestui  que  trust ;^ 
or  if  a  husband,  trustee  for  his  wife,  abandons  and  deserts  her 
or  treats  her  with  cruelty  ;  ^^  or  if  a  municipal  corporation, 
holding  property  upon  special  trusts,  is  abolished ;  ^^  or  if  a 
trustee  becomes  an  habitual  drunkard  ;  ^^  or  a  lunatic  ;  ^^  or  if 

Glasse,  1  Cr.  &  Ph.  126;  Thompson  v.  Thompson,  2  B.  Mon.  161;  Deen 
V.  Cozzens,  7  Rob.  178. 

J  Ex  parte  Phelps,  9  Mod.  357;  Clemens  v.  Caldwell,  7  B.  Mon.  171; 
Deen  v.  Cozzens,  7  Rob.  178;  Kraft  v.  Lohman,  79  Ala.  323. 

2  Thompson  v.  Thompson,  2  B.  Mon.  161;  Mayor  of  Coventry  v.  Att'y- 
Gen  ,  7  Bro.  P.  C.  235;  Att'y-Gen.  v.  Drummond,  1  Dr.  &  W.  353;  3  Dr. 
&  W  162;  Att'y-Gen.  v.  Shore,  7  Sim.  309  n. ;  Ex  parte  Greenhouse,  1 
Madd.  92. 

8  Ex  parte  Potts,  1  Ash.  340. 

4  Clemens  v.  Caldwell,  7  B.  Mon.  171 ;  Deen  v.  Cozzens,  7  Rob.  N.  Y. 
178,  Cavender  v.  Cavender,  114  U.  S.  464. 

^  Ex  parte  Reynolds,  5  Ves.  707. 

®  Johnson  v.  Simpson,  9  Barr,  416. 

T  Ehlen  v.  Ehlen,  63  Md.  267. 

8  Matter  of  IMerchants'  Bank,  2  Barb.  S.  C  446. 

9  Cooper  V.  Day,  1  Rich.  Ch.  26. 

10  Boaz  V.  Boaz,  36  Ala.  334;  Fisk  v.  Stubbs,  30  Ala.  355;  Smith  r. 
Oliver,  31  Ala.  139 ;  Abernathy  v.  Abernathy,  8  Fla.  243.  But  if  the 
wife  deserts  the  husband  without  cause,  though  the  husband  may  be  at 
some  fault,  it  is  no  cause  for  removing  him  as  her  trustee.  Abernathy  v. 
Abernathy,  8  Fla.  243. 

"  jMontpelier  v.  Jfast  Montpelier,  29  Vt.  12. 

12  Everett  v.  Pi7thergch,  12  Sim.  367;  Bayles  v.  Staats,  1  Halst.  Ch. 
513. 

18  Matter  of  Wadsworth,  2  Barb.  Ch.  387;  Re  Fowler,  2  Russ.  449; 
Anon.,  5  Sim.  322;  In  re  Holland,  16  Ch.  D.  672;  In  re  Nash,  16 
Ch.  D.  503;  In  re  Watson,  19  Ch.  D.  384;  In  re  Martyn,  26  Ch.  D. 
745 

367 


§  275.]  FOR   WHAT   CAUSES   MAY   BE   REMOVED.       [CHAP.  IX. 

a  hostile  feeling  exists  between  a  discretionary  trustee  and 
the  cestui^  or  the  trustee  is  antagonized  by  litigation,^  or  the 
trustee  acts  adversely  to  the  interests  of  the  cestui^  or  if  the 
trustee,  appointed  on  an  ex  parte  application  of  one  of  the 
cestuis,  is  his  paid  servant,*  or  if  there  is  any  other  good 
cause,^  as  if  the  trust  fund  is  in  danger  of  being  lost  for  want 
of  care  and  attention  by  the  trustee,^  or  if  in  any  way  the 
trustee  has  become  incapable  of  performing  the  duties  of  the 
trust, '^  or  his  acts  or  omissions  show  a  want  of  reasonable 
fidelity  to  the  trust,^  —  in  all  these  and  similar  cases  the 
old  trustees  may  be  removed,  and  new  ones  substituted  in 
their  room.  The  matter  rests  in  the  sound  discretion  of  the 
court.^  And  in  a  suit  for  the  purpose,  it  will  not  be  imperti- 
nent nor  scandalous  to  charge  the  trustee  with  misconduct,  or 
to  impute  to  him  a  corrupt  or  improper  motive,  or  to  allege 
that  his  behavior  is  vindictive  towards  the  cestui  que  trust  ; 
but  it  will  be  impertinent,  and  may  be  scandalous,  to  charge 
general  malice  or  general  personal  hostility.!^  If  the  court 
have  jurisdiction  of  the  subject-matter,  mere  irregularity  in 
the  proceedings  or  in  the  appointment  will  not  make  it  void 
in  a  collateral  proceeding,  nor  can  the  regularity  of  the  pro- 

1  Wilson  V.  Wilson,  145  Mass.  490,  494. 

2  Davidson  v.  Moore,  14  S.  C  251. 

3  Dickerson  v.  Smith,  17  S.  C.  289. 

4  Mayfield  v.  Donovan,  17  Mo.  App.  684. 

5  Piper's  App.,  20  Pa.  St.  67;  Franklin  v.  Hayes,  2  Swanst.  521. 

®  Jones  V.  Dougherty,  10  Ga.  273;  Harper  v.  Straws,  14  B.  Mon.  57; 
Holcomb  V.  Coryell,  1  Beas.  289;  Lasley  r.  Lasley,  1  Duv.  117;  and  see 
Commissioners  v.  Archibald,  11  Ir.  Eq.  195,  where  L.  Ch.  Brady  ably 
discusses  the  removal  of  trustees  In  re  Bernstein,  3  Redf.  (N  Y  )  20. 
Or  if  a  trustee  identifies  himself  with  one  of  two  contending  parties  in 
relation  to  the  trust  fund.  Scott  v.  Rand  et  al  ,  118  Mass,  215.  Or  is  so 
hostile  to  his  cotrustees  as  to  endanger  the  execution  of  the  trust.  De- 
vasmer  v.  Dunham,  22  Hun  (N.  Y  ),  87.  Or  is  guilty  of  gross  miscon- 
duct in  execution  of  a  discretionary  trust.  Babbit  v.  Babbit,  26  N.  J. 
Eq.  44;  Sparhawk  v.  Sparhawk,  114  Mass.  356. 

■^  Austin  V.  Austin,  18  Neb.  309. 

8  Cavender  v.  Cavender,  114  U.  S.  464. 

®  Ibid.,  citing  many  cases. 

^°  Portsmouth  v.  Fellows,  5  Madd.  450;  Parsons  v.  Jones,  26  Ga.  644. 
368 


CHAP.  IX.]        FOR   WHAT    CAUSES   MAY   BE   REMOVED.  [§  276. 

ceedings  or  of  the  appointment  be  inquired  into  in  a  collateral 
suit ;  such  appointment  must  stand  until  it  is  reversed  by  a 
proceeding  for  the  purpose  in  the  same  case.^  In  case  of  a 
trust  for  creditors,  the  court  will  not  at  the  instance  of  some 
of  them  remove  the  assignee,  unless  he  is  in  default,  or  is 
shown  to  be  unfit  for  his  office.^  Equity  will  not  exercise  its 
power  to  take  charge  of  and  administer  a  trust  when  it  is 
being  properly  administered  by  the  trustee.^ 

§  276.  It  may  be  stated  generally,  that  if  the  conduct  or 
circumstances  of  the  trustees  are  such  as  to  render  it  very 
inconvenient,  improper,  or  inexpedient  for  them  to  continue 
in  the  trust,  the  court  will  exercise  its  discretion  and  relieve 
them,  and  appoint  others  in  their  place ;  as  where  the  trus- 
tees were  desirous  of  being  discharged,^  or  were  incapable 
through  age  and  infirmity  of  acting,^  or  so  disagreed  among 
themselves  that  they  could  not  act,^  or  where  cotrustees  re- 
fuse to  act  with  one  of  their  number,''  or  where  the  trustees 
appointed  were  municipal  officers  for  the  time  being  and  are 
changed  yearly,^  or  where  a  corporation  appointed  trustee 
had  become  subject  to  a  foreign  power,  ^  —  in  these  and  the 
like  cases  the  courts  interposed  and  appointed  other  trustees. 
But  if  there  is  a  controversy,  the  court  will  exercise  a  sound 
discretion.  Mere  disagreements  between  the  trustee  and  cestui 
que  trust  will  not  justify  a  removal ;  '^^  nor  the  fact  that  the 

1  Budd  V.  Hiler,  3  Dutch.  43;  People  v.  Norton,  5  Selden,  176;  Paules 
V.  Dilley,  9  Gill,  222;  Curtis  v.  Smith,  60  Barb.  9;  Howard  v.  Waters, 
19  How.  529;  Hodgdon  v.  Shannon,  44  N.  H.  572. 

3  Jones  V.  McPhillips,  77  Ala.  314. 

3  Meyers  v.  Trustees  of  Schools,  21  111.  App.  223. 

*  Bogle  V.  Bogle,  3  Allen,  158;  Howard  v.  Rhodes,  1  Keen,  581  ;  Cov- 
entry V.  Coventry,  id.  758;  Greenwood  v.  Wakeford,  1  Beav.  576;  Hamil- 
ton V.  Frye,  2  Moll.  458. 

5  Gardiner  v.  Downes,  22  Beav.  395  ;  Bennett  v.  Honywood,  Amb. 
710. 

6  Bagot  V.  Bagot,  32  Beav.  509  ;  Uvedale  v.  Patrick,  2  Ch.  Ca.  20. 
T  Uvedale  v.  Patrick,  2  Ch.  Ca.  20. 

8  Ex  parte  Blackburne,  IJ.  &  W.  297;  Webb  v.  Neal,  5  Allen,  575. 
'  Attorney- General  v.  London,  3  Bro.  Ch.  171. 

10  Clemens  v.  Caldwell,  7  B.  Mon.  171  ;  Gibbes  v.  Smith,  2  Rich.  Eq. 
VOL  I. -24  369 


§  276  a.]       WHEN   A   TRUSTEE   MAY   BE   DISCHARGED.       [CHAP.  IX. 

trustee  forbids  social  intercourse  between  his  family  and  the 
beneficiaries,^  and  if  a  trustee  fails  in  the  discharge  of  his 
duties  from  an  honest  mistake,  or  mere  misunderstanding  of 
them,  or  from  a  misjudgment,  it  is  no  ground  for  removal  ;2 
and  if  a  trustee  in  good  faith  refuses  to  exercise  a  purely  dis- 
cretionary power  in  favor  of  tlie  estate,  as  to  vary  the  securi- 
ties, he  will  not  be  removed ;  ^  nor  will  he  be  removed  for  a 
mere  constructive  fraud,  as  for  buying  the  trust  property  at 
his  own  sale  ;  *  and  where  a  trust  was  to  take  effect  in  the 
future  upon  the  happening  of  a  certain  event,  and  in  the  mean 
time  it  was  to  remain  passive,  the  court  refused  to  interfere, 
and  remove  the  trustee  for  an  alleged  misfeasance.^  In  no 
case  ought  the  trustee  to  be  removed  where  there  is  no  danger 
of  a  breach  of  trust,  and  some  of  the  beneficiaries  are  satisfied 
with  the  management.^  Nor  will  a  trustee  be  removed  for 
every  violation  of  duty,  or  even  breach  of  the  trust,  if  the 
fund  is  in  no  danger  of  being  lost."  The  power  of  removal  of 
trustees  appointed  by  deed  or  will  ought  to  be  exercised  spar- 
ingly by  the  courts.  There  must  be  a  clear  necessity  for 
interference  to  save  the  trust  property.  Mere  error,  or  even 
breach  of  trust,  may  not  be  sufficient ;  there  must  be  such  mis- 
conduct as  to  show  want  of  capacity  or  of  fidelity,  putting  the 
trust  in  jeopardy.^ 

§  276  a.  A  trust  will  not  be  allowed  to  fail  for  want  of  a 
trustee ;   and  if  the  nominee  dies  before  qualifying  or  after- 

131 ;  Foster  v.  Davies,  4  De  G.,  F.  &  J.  133.  Unless  the  duties  of  the 
trustee  require  an  intimate  personal  intercourse,  or  the  trustee  has  dis- 
cretionary power  over  the  cestui  que  trust.  McPherson  v.  Cox,  96  W.  S. 
404. 

1  Nickels  v.  Philips,  18  Fla.  732. 

2  In  the  matter  of  Durfee,  4  R.  I.  401 :  Attorney- General  v.  Coopers' 
Co.,  19  Ves.  192;  Attorney-General  v.  Caius  Coll.,  2  Keen,  150 j  Lathrop 
V.  Smalley,  23  N.  J.  Eq.  192. 

8  Lee  V.  Young,  2  Y.  &  C.  Ch.  Ca.  532. 

*  Webb  V.  Dietrich,  7  W.  &  S.  401. 

s  Sloo  V.  Law,  1  Blatch.  C.  C.  512. 

6  Berry  v.  Williamson,  11  B.  Mon.  245. 

''  Lathrop  v.  Smalley,  23  N.  J.  Eq.  192;  Corlies  v.  Corlies,  Id. 

8  Massy  v.  Stout,  4  Del.  Ch.  274. 
870 


CHAP.  IX.]  PRINCIPLES  ON   WHICH    COUPvTS   ACT.  [§  277. 

ward,  the  court  will  appoint  a  trustee.^  So  if  no  trustee  is 
appointed  by  the  grantor,  or  his  appointment  is  void  for 
uncertainty .2  But  if  the  trustee  of  a  power  that  is  purely  per- 
sonal and  discretionary  refuses  to  qualify,  the  trust  cannot 
be  executed.^ 

§  277.  In  removing  and  substituting  trustees,  the  court 
does  not  act  arbitrarily,  but  upon  certain  general  principles, 
and  after  a  full  consideration  of  the  case.  Irregularities  in 
the  proceedings  of  appointment  not  affecting  the  jurisdiction 
of  the  court  will  not  avail  in  collateral  suits.*  But  an  appoint- 
ment where  there  is  no  vacancy,  the  former  trustee  not  hav- 
ing relinquished  the  trust  nor  been  deprived  of  it  for  abuse  or 
mismanagement,  is  a  nullity.^  Where  the  trustees  are  re- 
quired to  give  security,  it  will  order  such  notice  and  to  such 
persons  as  it  sees  fit.^  It  always  has  regard  to  the  wishes 
of  the  author  of  the  trust,  to  be  gathered  from  the  instru- 
ment of  trust;  if  he  has  expressed  a  disapprobation  of  an 
individual,  the  court  would  refrain  from  appointing  him ;  and 
so  the  court  will  not  appoint  a  new  trustee  with  a  view  to 
the  interest  of  some  of  the  cestuis  que  trust,  for  the  trustee 
ought  to  hold  an  even  hand  between  all  parties,  and  not  favor 
a  particular  one.  Further,  the  court  has  regard  to  the  nature 
of  the  trust,  and  to  those  instrumentalities  by  which  it  can 
best  be  carried  into  execution.'''  Accordingly,  courts  will 
not  substitute  trustees  upon  the  mere  caprice  of  the  cestui 
que  trust,  and  without  a  reasonable  cause,^  and  although  the 
instrument  of  trust  or  a  statute  gives  the  cestui  que  trust  full 
power  to  remove  and  appoint  other  trustees,  yet  good  cause 

1  Schouler,  Petitioner,  134  Mass.  426 ;  Mendenhall  v.  Mower,  16  S.  C. 
304. 

2  State  V.  Griffith,  2  Del.  Ch.  392. 

8  Jones  V.  Fulghum,  3  Tenn.  Ch.  193. 
4  McKim  V.  Doane,  137  Mass.  195. 
6  Augusta  V.  Walton,  77  Ga.  525,  526. 

6  Matter  of  Robinson,  37  N.  Y.  271. 

7  In  re  Tempest,  L.  R.  1  Ch.  487. 

8  O'Keeffe  v.  Calthorpe,  1  Atk.  18;  Pepper  v.  Tuckey,  2  Jon.&  La.  95; 
Ward  V.  Dorch,  69  N.  C.  279;  Bouldin  v.  Alexander,  15  Wall.  132. 

371 


§  2T8.]  BANKRUPTCY   OF   TRUSTEES.  [CHAP.  IX. 

must  be  shown  or  the  court  cannot  be  put  in  motion,^  nor 
will  they  appoint  a  trustee  out  of  the  jurisdiction  without 
security .2  There  is  no  absolute  rule  of  law  that  prevents  a 
cestui  que  trust  from  being  a  trustee  for  himself  and  others, 
and  the  court  is  sometimes  obliged  to  appoint  him ;  but  the 
arrangement  is  irregular  and  sometimes  disastrous,  and  the 
court  will  not  sanction  it  if  it  can  be  avoided.^  So  a  husband 
may  be  trustee  for  a  wife,  and  a  wife  for  a  husband,^  but  dif- 
ficulties frequently  grow  out  of  the  relation,  and  the  courts 
have  sometimes  said  that  they  would  not  make  such  appoint- 
ments.^ In  no  case  will  the  court  remove  old  trustees  and 
substitute  new  ones,  unless  satisfied  of  the  necessity  of  the 
removal,  and  of  the  fitness  of  the  new  trustee  proposed.  Nor 
will  the  court  authorize  the  new  trustees  to  nominate  their 
successors.  There  was  some  doubt  and  difference  of  practice 
at  first ;  ^  but  it  is  now  settled,  except  in  charities,'^  that  the 
court  will  not  delegate  this  part  of  its  jurisdiction  to  new 
appointees.^ 

§  278.  If  the  instrument  of  trust  requires  the  trustees  of 
a  charity  to  have  a  particular  residence,  it  is  irregular  to  ap- 

1  Stevenson's  App.,  59  Pa.  St.  101;  68  Pa.  St.  101. 

2  Ex  parte  Robert,  2  Strob.  86;  Gibson's  Case,  1  Bland,  138. 

8  Passingham  v.  Sherborne,  9  Beav.  424;  Reid  v.  Reid,  30  Beav.  388; 
Ex  parte  Glutton,  17  Jur.  988;  Ex  parte  Conyheare's  Settlement,  1  \Y.  R. 
458;  Wilding  v.  Bolder,  21  Beav.  222;  Craig  v.  Hone,  2  Edw.  Ch.  554. 

*  Tweedy  v.  Urquhart,  30  Ga.  446;  Livingston  v.  Livingston,  2  Johns. 
Ch.  541;  Bennett  c.  Davis,  2  P.  Wms.  316;  Shirley  v.  Shirley,  9  Paige, 
363;  Jamison  t-.  Brady,  6  S.  &  R.  467;  Boykin  v.  Cipples,  2  Hill,  Ch. 
200;  Picquet  v.  Swann,  4  Mason,  455;  Griffith  i'.  Griffith,  5  B.  Men.  113; 
Gibson's  Case,  1  Bland,  138;  Watkins  v.  Jones,  28  Ind.  12;  Gardner  v. 
Weeks,  32  Ga.  696. 

5  Dean  v.  Sanford,  9  Rich.  Eq.  423.  But  the  court  will  not  appoint 
the  husband  trustee,  under  a  trust  for  the  separate  use  of  his  wife.  Ely 
V.  Burgess,  11  R.  I.  115;  Ex  parte  Hunter,  Rice,  Ch.  (S.  C.)  294. 

6  Joyce  V.  Joyce,  2  Moll.  276 ;  White  v.  White,  5  Beav.  22L 
'  Lewin  on  Trusts,  606  (5th  ed.). 

8  Bayley  v.  Mansell,  4  Madd.  226;  Brown  v.  Brown,  3  Y.  &  C.  395; 
Bowles  V.  Weeks,  14  Sim.  591 ;  Oglander  v.  Oglander,  2  De  G.  &  Sra,  381 ; 
Southwell  V.  Ward,  Taml.  314;  Holder  r.  Durbin,  11  Beav.  594;  over- 
ruling White  V.  White,  5  Beav.  221. 
372 


CHAP.  IX.]  BANKRUPTCY    OP   TRUSTEES.  [§  279. 

• 

point  others  not  answering  that  description,  provided  there 
are  those  proper  to  be  trustees.^  But  if  it  is  the  custom  to 
appoint  such  non-residents,  the  court  will  not  remove  them, 
but  will  sec  that  vacancies  when  they  occur  are  properly 
filled.^  And,  generally,  if  an  irregular  appointment  has  been 
acquiesced  in  for  a  long  time,  the  court  will  not  remove.^  In 
making  the  selection,  the  inquiry  is  whether  the  proposed 
appointment  is  proper,  not  whether  it  is  the  most  proper.-^ 

§  279.  It  is  laid  down  in  several  cases,  that  if  a  trustee 
becomes  bankrupt  he  may  be  removed,^  or  if  he  becomes  in- 
solvent and  compounds  with  his  creditors  ;  and  this  is  on  the 
ground  that  the  cestui  que  trust  has  a  right  to  have  the  trust 
administered  by  responsible  trustees.  The  English  bankrupt 
act  "^  provides,  that,  if  a  trustee  becomes  bankrupt,  the  chan- 
cellor, on  petition  and  due  notice,  may  oi'der  the  trust  estate 
to  be  conveyed  by  the  bankrupt,  the  assignees,  and  all  other 
persons  interested,  to  such  other  persons  as  the  chancellor 
shall  think  fit,  upon  the  same  trusts.  Under  this  statute  it 
has  been  determined  that  the  court  will  exercise  its  discretion 
whether  to  remove  the  bankrupt  or  not,'  but  that  prima  facie 
the  bankrupt  is  to  be  removed,^  although  he  may  have  obtained 
his  discharge.^  But  the  court  will  not  interfere  long  after 
the  bankruptcy  to  remove  the  trustee,  if  he  has  obtained  his 
discharge.^^  Generally  the  insolvency  or  bankruptcy  of  a  ti'us- 
tee  does  not  disqualify  him  for  the  trust,^^  nor  does  his  bank- 

1  Attorney- General  v.  Cowper,  1  Bro.  Ch.  439. 

^  Attorney- General  v.  Daugars,  33  Beav.  621;  Attorney- General  v. 
Clifton, '32  Beav.  596;  Attorney-General  v.  Stamford,  1  Phill.  737. 

8  Attorney-General  v.  Cuming,  2  Y.  &  C.  Ch.  Ca.  150. 

*  Lancaster  Charities,  7  Jur.  (n.  s.)  96. 

^  Bainbrigge  v.  Blair,  1  Beav.  495;  In  re  Roche,  1  Conn.  &  Laws. 
306;  Com.,  &c.  v.  Archbold,  11  Ir.  Eq.  187;  Harris  v.  Harris,  29  Beav. 
107. 

6  12  &  13  Vict.  c.  106,  §  130. 

'  Re  Roche,  2  Dr.  &  W.  289;  2  H.  L.  Ca.  461. 

8  Bainbrigge  i\  Blair,  1  Beav.  495.  ^  Ibid. 

10  Re  Biidgman,  1  Dr.  &  Sm.  164. 

"  Shryock  v.  Waggoner,  28  Pa.  St.  430 ;  Turner  v.  Maule,  5  Eng.  L. 
&  Eq.  222;  Ex  parte  Watts,  4  Eng  L.  &  Eq.  67. 

373 


§  280.]  BANKRUPTCY   OF   TRUSTEES.  [CHAP.  IX 

ruptcy  affect  the  trust  estate  in  his  hands  ;  and  his  certificate 
does  not  discharge  him  from  fiduciary  obligations.^  In  the 
United  States,  trustees  are,  or  may  be,  required,  in  the  great 
majority  of  cases,  to  give  bonds  or  security  for  the  safety  of 
the  trust  fund :  in  all  such  cases  it  would  seem  that  the  bank- 
ruptcy of  the  trustee  would  not  /»er  se  render  him  removable, 
unless  there  was  some  misconduct  that  rendered  it  proper  for 
the  court  to  exercise  a  sound  discretion. 

§  280.  In  Bogle  v.  Bogle,^  the  court  determined  that  one 
who,  without  compensation  and  for  no  definite  time,  under- 
took a  trust  for  the  benefit  of  another  was  entitled  to  a  decree 
discharging  him,  when  the  further  care  of  the  property  be- 
came inconvenient  to  him.  Generally,  trustees  who  have 
acted  are  not  entitled,  as  against  the  trust  estate,  to  refuse  at 
pleasure  to  continue :  they  must  have  some  good  cause  to 
entitle  them  to  be  relieved.^  If  they  have  received  a  legacy 
or  other  benefit  given  to  them  as  trustees,  they  cannot  be 
allowed  to  retire  except  for  good  cause,*  at  least  without  re- 
storing the  legacy.  It  is  a  good  cause  for  relief  if  the  cestui 
que  trust  incumber  and  complicate  the  estate,  and  embarrass 
the  trustee  in  the  performance  of  his  duties.^  But  where 
there  is  no  cause  for  a  discharge,  except  the  wish  of  the 
trustee,  or  his  convenience,  he  ought  to  pay  the  costs  of  the 
proceeding,  and  not  impose  the  burden  and  expense  upon  the 
estate  ;  ^  and  so  if  the  old  trustee  is  removed  for  misconduct 
on  his  part.'^  But  if  the  trustee  has  a  good  reason  for  his 
discharge,  he  will  be  entitled  to  his  costs  out  of  the  estate  as 

1  Belknap  v.  Belknap,  5  Allen,  468. 

2  3  Allen,  158. 

3  Greenwood  v.  Wakeford,  1  Beav.  576;  Cruger  v  Halliday,  11  Paige, 
314;  Jones  v.  Stockett,  2  Bland,  409;  Re  Meloney,  2  Jon.  &  La.  391. 

*  Craig  V.  Craig,  3  Barb.  Ch.  76. 

^  Howard  v.  Rhodes,  1  Keen,  481 ;  Coventry  v.  Coventry,  Id.  758 ; 
Greenwood  v.  Wakeford,  1  Beav.  576 ;  Hamilton  v.  Frye,  2  Moll.  458. 

6  Matter  of  Jones,  4  Sandf.  Ch.  615;  Howard  v.  Rhodes,  1  Keen,  581; 
Courtenay  v.  Courtenay,  3  Jon.  &  La.  529. 

"  Ex  parte  Greenhouse,  1  Madd.  92;  Howard  v.  Rhodes,  1  Keen, 
581. 

374 


CHAP.  IX.]  BANKRUPTCY   OF   TRUSTEES.  [§  280. 

between  solicitor  and  client.^  Courts  of  equity,  by  virtue  of 
their  general  chancery  powers,  have  jurisdiction  to  accept 
the  resignation  of  trustees,  or  to  remove  them  for  cause,  and 
to  appoint  new  trustees ;  and  courts  of  probate  in  several 
States  have  power  by  statute  to  remove  and  appoint  new 
trustees,  whether  they  are  created  by  will  or  deed.^  Pro- 
ceedings are  generally  commenced  directly  for  the  removal 
and  appointment  of  trustees  ;  but  when  a  bill  or  petition  is 
already  pending  for  the  administration  of  the  trust,  the  ap- 
pointment or  removal  may  be  made  upon  motion  in  those 
proceedings.^  And,  further,  if  the  trusts  created  in  an  instru- 
ment are  of  such  a  nature  that  they  can  be  severed  without 
injury  to  the  estate,  courts  may  allow  the  trustee  to  resign  a 
part,  and  will  commit  that  part  to  other  trustees  under  proper 
arrangements  for  security.*  But  courts  will  not  remove  trus- 
tees against  their  will  from  one  part  of  the  trust,  and  leave 
them  burdened  with  the  responsibility  of  the  remainder.^  If 
the  cestuis  request  a  trustee  who  has  misappropriated  funds, 
&c.,  to  resign,  and  make  a  promise  to  him  on  consideration 
that  he  will  do  so,  the  promise  is  void ;  it  was  the  trustee's ' 
duty  under  such  circumstances  to  comply  with  the  request.^ 

1  Coventry  v.  Coventry,  1  Keen,  758;  Taylor  v.  Glanville,  3  Madd.  176; 
Cartels  ;;.  Chandler,  6  Madd.  123;  Greenwood  v.  Wakeford,  1  Beav.  581. 

^  Bowditch  V.  Bannelos,  1  Gray,  220;  King  v.  Donnelly,  5  Paige,  46; 
De  Peyster  v.  Clendining,  8  Paige,  295;  Field  v.  Arrowsmith,  3  Humph. 
442;  McCosker  v.  Brady,  1  Barb.  Ch.  329;  In  re  Potts,  1  Ash,  340;  Mat- 
ter of  Mechanics'  Bank,  2  Barb.  S.  C.  446;  Dawson  v.  Dawson,  Rice,  Eq. 
243;  Lee  v.  Randolf,  2  Hen.  &  M.  12;  In  re  Eastern  R.  R.  Co.,  120 
Mass.  412. 

8  V.  Osborne,  6  Ves.  455;  Webb  v.  Shaftesbury,  7  Ves.   487; 

V.  Roberts,  IJ.  &  W.  251;  Ex  parte  Potts,  1  Ash.  340. 

*  Craig  V.  Craig,  3  Barb.  Ch.  76.  But  where  there  is  a  single  power 
of  appointment  in  the  trust  instrument,  though  the  estates  are  of  a  differ- 
ent description,  or  are  held  under  a  different  title,  or  upon  different  trusts, 
there  is  no  authority  for  dividing  the  trusts,  and  appointing  different  sets 
of  trustees  for  the  different  estates  or  trusts.  Cole  v.  Wade,  16  Ves.  27; 
Re  Anderson,  1  Llo.  &  Goo.  t.  Sugd.  29;  Curtis  v.  Smith,  6  Blatch. 
537. 

5  Sturges  V.  Knapp,  31  Vt.  1. 

«  Withers  v.  Ewing,  40  Ohio  St.  406,  407. 

375 


§  282.]        FOR   WHAT    CAUSES   TRUSTEES    MAY   RESIGN.     [CUAP.  IX. 

§  281.  If  a  testator  in  his  will  appoint  his  executor  to  be 
a  trustee,  it  is  as  if  different  persons  had  been  appointed  to 
each  office  ;  ^  a  court  of  equity  cannot  remove  him  from  the 
executorship,  for  courts  of  probate  have  exclusive  jurisdic- 
tion over  the  appointment  and  removal  of  administrators  and 
executors ;  but  if  the  office  of  trustee  is  separate  from  and 
independent  of  the  office  of  executor,  a  court  of  equity  may 
remove  him  from  the  office  of  trustee,  and  leave  him  to  act  as 
executor ;  or  if  he  has  completed  his  duties  as  executor,  and 
is  holding  and  administering  the  estate  simply  as  trustee,  a 
court  of  equity  may  remove  him.^ 

§  282.  Courts  of  equity,  having  jurisdiction  to  remove  and 
appoint  trustees,^  may  be  applied  to  either  by  bill  or  peti- 
tion;^ or,  if  a  bill  is  already  pending  for  administration  of 
the  estate,  application  may  be  made  in  those  proceedings,  by 
motion.^     All  persons  interested  in  the  trust  may  institute 

1  Parsons  v.  Lyman,  5  Blatch.  C.  C.  170;  Perkins  v.  Lewis,  41  Ala. 
649.  The  fact  of  qualification  as  executor  by  a  person  named  in  the  will 
both  as  executor  and  trustee,  does  not  of  itself  prove  his  acceptance  of  the 
office  of  trustee.     Anderson  v.  Earle,  9  S.  C.  460. 

2  Wood  V.  Brown,  34  N  Y.  339;  Leggett  v.  Hunter,  25  Barb.  81;  19 
N.  Y.  445;  Craig  v.  Craig,  3  Barb.  Ch.  76;  Matter  of  Wordsworth,  2 
Barb.  Ch.  381;  Ex  parte  Dover,  5  Sim.  500;  Quackenboss  v.  Southwick, 
41  N.  Y.  117. 

*  Bowditch  V.  Bannelos,  1  Gray,  220,  and  cases  cited  last  section;  Wil- 
liamson V.  Suydam,  6  Wall.  723;  Livingston,  Pet'r,  34  N.  Y.  555.  In 
absence  of  statutory  provision,  the  weight  of  authority  requires  that  the 
proceedings  should  commence  by  bill. 

4  Mitchell  V.  Pitner,  15  Ga.  319;  Ex  parte  Knust,  1  Bail.  Eq.  489;  Ex 
parte  Grenville  Academies,  7  Rich.  470;  Matter  of  Van  Wyck,  1  Barb. 
Cb.  565;  Ex  parte  Hussey,  2  Whart.  330;  Ex  jmrte  Rees,  3  V.  &  B.  11 ; 
Miller  v.  Knight,  1  Keen,  129 ;  Barker  v.  Peile,  2  Dr.  &  Sm.  340.  This 
matter  is  mostly  regulated  by  the  statutes  of  the  several  States.  Although 
proceedings  by  statute  may  be  originated  by  petition,  yet  the  proceedings 
may  be  by  bill.  Barker  v.  Peile,  ut  supra ;  Re  Foster's  Will,  15  Hun 
(N.  Y),  387;  Re  Ballou,  Pet'r,  11  R.  I.  360.  In  some  cases  it  is  said  that 
the  right  to  proceed  by  petition  is  confined  to  cases  where  there  is  a  breach 
of  the  trust.  Li  re  Sanford  Charity,  2  Mer.  456;  Re  Livingston,  34  N.  Y. 
567. 

5  V.   Osborne,  6  Ves.  455; v.  Roberts,  1  J.  &  W.  251; 

Webb  V.  Shaftesbury,  7  Ves.  487;  Ex  parte  Potts,  1  Ash.  340. 

376 


CHAP.  IX.]  WHO    MAY   INSTITUTE   PROCEEDINGS.  [§  282. 

proceedings  in  their  own  names,  but  notice  should  be  given 
to  all  other  parties  in  interest.^  If  the  trustee  must  give 
security  for  the  fund,  notice  is  within  the  discretion  of  the 
court  ;^  but  if  the  trust  instrument  provides  that  notice  of 
the  proceedings  for  the  appointment  of  new  trustees  shall  be 
given  to  particular  persons,  the  appointment  will  be  irregular 
if  the  notice  is  not  given.^  The  cestui  que  trust  and  those 
directly  interested  may  of  course  originate  the  suit,*  and 
those  interested  in  remainder  or  reversion  may  begin  pro- 
ceedings.^ The  trustees  may  bring  the  suit  against  the  ces- 
tuis  que  trust  ;^  or  one  or  more  of  several  trustees  may  bring 
the  suit  against  one  or  more  of  their  cotrustees,  joining  the 
cestuis  que  trust  either  as  plaintiffs  or  defendants.'^  In  all 
public  charities  the  Attorney-General  may  begin  proceedings 
by  information  or  petition  with  or  without  a  relator .^     But 

1  Abbott,  Pet'r,  55  Me.  580:  Williamson  v.  Wickersham,  2  Coll.  52; 
Guion  V.  Melvin,  69  N.  C.  242;  Wardle  v.  Hargieaves,  11  Law  Jour. 
(n.  s.)  Ch.  126  ;  Henry  v.  Doctor,  9  Ohio,  49.  As  to  who  are  parties  in- 
terested entitled  to  notice.  Bradstreet  v.  Butterfield,  129  Mass.  339.  In 
Pennsylvania,  .under  an  act  which  provides  that  proceedings  shall  be  upon 
petition  "  by  any  person  interested,  whether  such  interest  be  immediate  or 
remote,"  it  was  held  that  the  interest  for  such  a  purpose  must  be  such  as 
will  certainly  fall  into  possession  sometime  ;  and  a  bare  possibility,  depen- 
dent on  the  death  of  the  first  taker  without  issue,  is  not  such  an  interest 
as  will  authorize  a  citation.  Keene's  App.,  60  Pa.  St.  506.  But  see 
Hartman's  App.,  90  Pa.  St.  206,  under  a  subsequent  statute. 

2  Matter  of  Robinson,  37  N.  Y.  261. 

8  Washington,  &c.  R.  R.  Co.  v.  Alexander,  &c.  R.  R.  Co.,  19  Grat.  592. 

*  Bainbrigge  v.  Blair,  1  Beav.  495;  Bennett  v.  Honywood,  Amb.  708; 
Buchanan  v.  Hamilton,  5  Ves.  722;  Portsmouth  v.  Fellows,  5  Madd.  450; 
Howard  v.  Rhodes,  1  Keen,  581 ;  Millard  v.  Eyre,  2  Ves.  Jr.  94;  In  Matter 
of  Smith's  Settlement,  2  De  G.  &  Sm.  781;  Ex  parte  Tunno,  1  Bail.  Eq. 
395. 

5  Finlay  v.  Howard,  2  Dr.  &  W.  490;  Cooper  v.  Day,  1  Rich.  Eq.  26; 
Re  Livingston,  34  N.  Y.  567;  Joyce  v.  Gunnels,  2  Rich.  Eq.  260;  Re 
Sheppard,  1  N.  R.  76,  overruling  same  case,  10  W.  R.  704;  s.  c.  4  De  G., 
F.  &  J.  423. 

®  Coventry  r.  Coventry,  1  Keen,  758;  Greenwood  v.  Wakeford,  1  Beav. 
576. 

'  Lake  v.  De  Lambert,  4  Ves.  .592. 

^  Attorney- General  v.  London,  3  Bro.  Ch.  171 ;  Attorney-General  v. 
Stephens,  3  i\I.  &  K.  347;  Attorney-General  v.  Clack,  1  Beav.  467;  Re 

377 


§  283.]  WHO    MAY   INSTITUTE   PROCEEDINGS.  [CHAP.  IX. 

where  a  settlor  had  conveyed  property  to  a  trustee  for  him- 
self for  life,  and  at  his  decease  to  his  issue  according  to  the 
statute  of  distributions,  and  in  case  of  his  dying  without  issue 
to  his  nephews,  it  was  held  that  the  trust  was  only  an  im- 
plied trust  for  the  nephews ;  that  they  had  no  interest  in  the 
express  trusts  for  the  settlor  for  life  ;  and  that  they  could  not 
maintain  a  petition  for  the  removal  of  the  trustee.^  And 
where  a  cestui  que  trust  drew  an  order  on  the  trustees  in 
favor  of  her  children,  it  was  held  that  this  did  not  give  the 
children  such  an  interest  in  the  funds  that  they  were  parties 
to  proceedings  for  the  appointment  of  new  trustees.^  If  a 
trustee  retires,  allowing  a  new  trustee  to  be  appointed,  with- 
out communication  with  the  cestui  que  trust,  and  a  suit  is 
instituted  complaining  of  such  appointment,  but  seeking  no 
relief  against  such  retiring  trustee,  he  is  not  a  necessary 
party .^  And  if  a  trustee  transfers  the  property  to  a  new 
trustee  appointed  by  order  of  court,  he  will  be  bound  by  the 
proceedings,  though  they  were  irregular  and  without  notice 
to  him.*  If  some  of  the  cestuis  que  trust  are  minors,  they 
ought  to  have  a  guardian  ad  litem,  but  a  new  trustee  may  be 
appointed.^  The  proceedings  ought  to  be  in  a  court  having 
jurisdiction  of  the  original  trust.*' 

§  283.  If  all  the  parties  are  sui  juris,  and  consent  to  the 
appointment  of  the  new  trustee,  the  court  will  at  once  make 
the  appointment,  and  direct  the  conveyances  to  be  made.' 
But  generally  it  will  be  referred  to  a  master  to  report  a 
proper  person  to  be  appointed.^     Upon  the  coming  in  of  the 

Bedford  Charity,  2  Swanst.  520;  Wilson  v.  Wilson,  2  Keen,  251;  Re 
Fowey's  Charities,  4  Beav.  225. 

1  In  re  Livingston,  -34  N.  Y  555;  Ex  parte  Brown,  Coop.  295. 

2  Hawley  v.  Koss,  7  Paige,  103. 

8  Marshall  v.  Sladden,  7  Hare,  427- 

4  Thomas  v.  Higham,  1  Bail.  Eq.  222. 

6  Hunter  v.  Gibson,  16  Sim.  158. 

6  Howard  v.  Gilbert,  39  Ala.  72. 

'  O'Keeffe  v.  Calthorpe,  1  Atk.  18;  Young  v.  Young,  4  Cranch,  C.  C 
499. 

8  Howard  v.  Rhodes,  1  Keen,  581;  Buchanan  v.  Hamilton,  5  Ves.  722; 
Attorney-General  v.  Stephens,  3  M.  &  K.  352;  Millard  v.  Eyre,  2  Ves.  Jr. 

378 


CHAP.  IX.]      PROCEEDINGS   TO    SUBSTITUTE   TRUSTEES.  [§  284. 

master's  report,  exceptions  may  be  taken  to  it  in  the  usual 
manner  ;  but  the  exceptions  must  be  to  the  unfitness  of  the 
person  recommended,^  and  not  that  some  other  one  is  more 
fit.2 

§  284.  The  appointment  of  a  new  trustee  is  not  complete 
until  the  property  is  vested  in  him ;  therefore  the  court 
usually  embraces,  in  the  decree  appointing  a  new  trustee, 
a  direction  for  a  proper  conveyance  to  be  executed  to  him 
alone,  or  to  him  jointly  with  the  continuing  or  remaining 
trustees,  by  all  the  requisite  parties,  whether  remaining  trus- 
tees, or  heirs  or  representatives  of  the  last  survivor,  or  trus- 
tees who  have  been  removed  from  office.^  If  the  old  trustee 
refuses  to  deliver  the  property  to  the  new  incumbent,  the 
former  and  his  bondsmen  are  liable.^  In  some  States  it  is 
provided  by  statute,  that,  upon  qualification  by  the  newly 
appointed  trustee,  the  trust  estate  shall  vest  in  him  in  like 
manner  as  it  had  or  would  have  vested  in  the  trustee  in 
whose  place  he  is  substituted.^  It  has  been  determined  that 
no  conveyance  is  necessary  where  such  statutes  are  in  force, 
but  that  the  trust  estate  vests  immediately  upon  the  appoint- 
ment, by  virtue  of  the  statute,  with  all  the  powers  and  duties 
essential  to  the  purposes  of  the  trust.^  And  so  if  the  instru- 
ment of  trust  provides  for  the  vesting  of  the  estate  in  the 
remaining,  surviving,  or  new  trustees,  upon,  the  removal, 
resignation,  death,  and  appointment  of  others,  the  trust  es- 

94  ;  Seton's  Decrees,  249:  Matter  of  Stuyvesant,  3  Edw.  Ch.  229  ; 

V.  Roberts,  1  J.  &  W.  251 ;  Attorney- General  v.  Clack,  1  Beav.  474;  Attor- 
ney-General V.  Arran,  1  J.  &  W.  229. 

1  Attorney-General  v.  Dyson,  2  S.  &  S.  528. 

»  Ibid. 

8  O'Keeffe  v.  Calthorpe,  1  Atk.  18. 

*  Bassett  v.  Granger,  136  Mass.  174;  McKim  v.  Doane,  137  Mass.  195. 

6  Mass.  Public  Stat.;  Trustees  Act,  1850,  12  &  13  Vict.  c.  74,  §§  33, 
34,  35,  3G;  Stearly's  App.,  3  Grant,  270.  See  Golder  v.  Bressler,  105 
111,  419. 

6  Parker  v.  Converse,  5  Gray,  341;  Re  Fisher's  Will,  1  AV.  R.  505; 
Smith  V.  Smith,  3  Dr.  72;  Woolridge  r.  Plantere'  Bank,  1  Sneed,  297; 
Goss  V.  Singleton,  2  Head,  67;  Gibbs  r.  Marsh,  2  Met.  243,  253;  Duffy  u. 
Calvert,  0  Gill,  487;  Burdick  v.  Goddard,  11  R.  I.  51G. 

379 


§  285.]  PROCEEDINGS   TO    SUBSTITUTE   TRUSTEES.'     [CHAP.  IX. 

tate  will  vest  according  to  the  provisions  of  the  instrument, 
as  the  creator  of  the  trust  ma}'  mould  it  at  his  pleasure. ^  It 
has  already  been  seen  that,  if  one  of  the  trustees  disclaims 
without  having  acted  or  accepted  the  trust,  the  estate  vests 
in  the  acting  trustees ;  and  if  a  sole  trustee  disclaims  before 
acting,  the  estate  vests  in  the  heirs-at-law  subject  to  the 
trust.2  So  where  a  vacancy  results  from  the  incapacity  of 
the  trustee,  or  upon  his  removal  from  the  jurisdiction  of  the 
court,  the  want  of  power  to  compel  a  conveyance,  and  the 
necessity  of  the  case,  require  the  court  to  recognize  the  power 
of  the  remaining  trustee  to  convey  to  his  new  cotrustee  with- 
out a  conveyance  from  the  retiring  or  removed  trustee.^  In 
trusts,  that  do  not  come  within  the  words  or  the  spirit  of 
the  statute  in  relation  to  the  vesting  of  trust  estates  in  new 
appointees,  and  in  cases  where  the  trust  instrument  is  silent 
concerning  the  vesting  of  the  estate  in  new  trustees,  and 
there  is  no  necessity  for  a  departure  from  the  ordinary  rule  of 
a  conveyance,  a  conveyance  must  be  made  to  the  new  trustee, 
in  order  to  vest  the  estate  in  him.*  When  the  removed  trus- 
tee fails  to  obey  an  order  of  court  for  the  delivery  of  the 
trust  property  to  the  new  trustee,  the  latter  may  sue  on  the 
bond  of  the  former  trustee  for  damages.^  The  acceptance 
by  the  new  trustee  of  a  statement  found  among  the  papers 
of  a  deceased  trustee  showing  his  receipts  and  disburse- 
ments on  account  of  the  trust  estate  may  amount  to  an  ac- 
counting between  the  old  and  new  trustees.^ 

§  285.  A  trustee  may  be  relieved  from  his  office  by  the 
consent  of  all  parties  interested,  without  the  decree  of  a  court, 

1  Ellis  V.  Boston,  Hartford,  &  Erie  R.  R.,  107  Mass.  13;  Xational 
Webster  Bank  i;.  Eldriflge,  115  Mass.  421.  ^  ^„^g^  g  273. 

8  Cape  V.  Bent,  9  Jur.  658;  O'Reiley  r.  Alderson,  8  Hare,  101;  Men- 
nard  v.  Wilford,  1  Sm.  &  Gif.  42G;  Eaton  v.  Smith,  2  Beav.  236;  Cooke 
V.  Crawford,  13  Sim.  91;  In  re  Moravian  Soc,  26  Beav.  101. 

4  Folley  V.  Wontner,  2  Jac.  &  W.  24;  Owen  v.  Owen,  1  Atk.  496; 
Foster  v.  Goree,  4  Ala.  440;  Crosby  v.  Huston,  1  Tex.  203;  Miller  r. 
Priddon,  1  De  G.,  M.  &  G.  339. 

6  Phillips  V.  Ross,  36  Ohio  St.  458. 

^  Gorsuch  V.  Briscoe,  56  Md.  573. 

380 


CHAP.  IX.]  NUMBER    TO    BE    APPOINTED.  [§  286. 

even  if  the  instrument  of  trust  is  silent  upon  that  subject. 
But  the  transaction  operates  rather  as  an  estoppel  of  the 
cestui  que  trust  than  as  an  affirmative  transfer  of  power. 
Thus,  no  Cestui  que  trust  who  concurs  in  a  breach  of  trust 
can  afterwards  call  the  trustee  to  an  account  for  the  dis- 
astrous consequences  ;  ^  therefore,  if  a  trustee  conveys  the 
trust  estate  to  another  person,  and  appoints  such  other  per- 
son trustee,  and  all  the  cestuis  que  trust  execute  the  convey- 
ances, or  otherwise  consent  to  the  transaction,  they  would  be 
forever  precluded  from  holding  the  retiring  trustee  respon- 
sible for  any  delegation  of  his  office,  or  for  any  loss  that  oc- 
curred afterwards.2  But  the  trustee  must  see  to  it  that  all 
the  cestuis  que  trust  are  parties  to  the  transaction  and  con- 
cur ;  for,  even  in  the  case  of  a  large  number  of  creditors, 
each  individual  must  act  for  himself,  or  he  is  not  estopped, 
and  the  consent  of  a  majority  cannot  affect  the  rights  of  one 
who  did  not  concur.^  The  trustee  must  also  see  to  it  that 
all  the  cestuis  que  trust  are  sui  juris,  and  not  married  women, 
infants,  or  other  persons  incapable  of  acting,  or  of  no  legal 
capacity  to  consent.  For  if  there  are  such  cestuis  que  trust, 
there  can  be  no  discharge  and  substitution  of  trustees  with- 
out the  sanction  of  the  court,  in  the  absence  of  a  power  in 
the  instrument  of  trust ;  ^  or  if  there  may  be  parties  in  inter- 
est not  yet  in  existence,  as  if  the  trust  is  for  children  not  yet 
born,  there  can  be  no  change  of  trustees  by  consent.  But  a 
married  woman  is  considered  sui  juris  in  respect  to  her  sole 
and  separate  estate,  where  there  is  no  restraint  against  anti- 
cipation or  alienation." 

§  286.  If  there  are  two  or  more  trustees  named  in  an  in- 
strument of  trust  with  power  to  appoint  successors,  and  they 
all  retire  at  the  same  time,  they  ought  not  to  appoint  a  single 

^  Wilkinson  v.  Parry,  4  Russ.  276.  ^  Ibid. 

*  Colebrook's  Case,  cited  Ex  parte  Hughes,  6  Ves.  622;  Ex  parte  JjZ,cj, 
Id.  G28-630,  n. 

*  Cruger  v.  Halliday,  11  Paige,  314. 

6  Ilulme  V.  Hulme,  1  Bro.  Ch.  20;  Lewin  on  Trusts,  540,  541 
(5th  ed.). 

381 


§  286.]  NUMBER   TO    BE   APPOINTED.  [CHAP.  IX. 

trustee  only  in  the  place  of  two  or  more.^  In  such  case  the 
settlor  has  fixed  the  number  which  he  thinks  necessary  for 
the  i^roper  administration  and  safety  of  the  trust  fund ;  and 
if  a  single  trustee  is  appointed  and  wishes  to  retira,  he  ought 
not  to  appoint  a  plurality  of  trustees,  for  in  such  a  case  he 
ought  not  to  increase  the  machinery  and  expense  of  the  trust 
contrary  to  the  settlor's  intention.^  But  the  power  may  be 
so  drawn  that  several  may  be  put  in  place  of  one,  or  one  in 
the  place  of  several.  Thus  where  a  testator  appointed  two 
trustees,  and  the  surviving  or  continuing  trustee  or  trustees 
were  authorized  to  appoint  one  or  more  persons  to  be  trustee 
or  trustees,  in  the  room  of  the  trustee  or  trustees  so  dying, 
&c.,  the  surviving  trustee  appointed  two  new  trustees,  and 
the  appointment  was  held  by  the  court  to  be  authorized.^ 
So,  three  trustees  have  been  appointed  in  place  of  two,*  and 
three  have  been  authorized  in  place  of  four,^  and  two  in  place 
of  one,^  and  four  in  place  of  five.'^  In  another  case,  one  trus- 
tee was  appointed  by  the  court  in  place  of  two.^  And  if  a 
successor  cannot  be  found  to  a  retiring  trustee,  the  court 
may  appoint  the  continuing  trustees  to  be  sole  trustee  or 

1  Hulme  V.  Hulme,  2  M.  &  K.  682;  Mass.  Gen.  Hospital  v.  Amory,  12 
Pick.  445. 

2  Rex  V.  Lexdale,  1  Burr.  448;  Ex  parte  Davis,  2  Y.  &C.  Ch.  Ca.  468; 
3  Mont.  D.  &  De  G.  304. 

3  D'Almaine  v.  Anderson,  Lewin  on  Trusts,  468  (5th  ed.) ;  Hill  on 
Trustees,  182. 

*  Meinertzhagen  v.  Davis,  1  Col.  C.  C.  335. 

5  Emmet  ;;.  Clarke,  3  Gif.  32. 

6  Hillman  v.  Westwood,  3  Eq.  R.  142. 

"<  Corrie  v.  Byrom,  Lewin  oil  Trusts,  468  (5th  ed.) ;  Hill  on  Trustees, 
181. 

8  Greene  v.  Borland,  4  Met.  330.  In  this  case  the  appointment  was 
assented  to  by  all  parties,  and  great  stress  was  laid  upon  that  fact.  The 
court  might  also  have  said  that  the  proceedings  were  in  a  collateral  matter, 
and  that,  as  long  as  the  appointment  by  a  court  having  jurisdiction  stood 
unreversed,  its  validity  could  not  be  tried  in  another  and  distinct  proceed- 
ing. The  case  of  Greene  v.  Borland  is  not  necessarily  inconsistent  with 
Mass.  Gen.  Hospital  v.  Amory,  12  Pick.  445,  decided  by  the  same  court. 
Dixon  V.  Homer,  12  Cnsh.  41;  Attorney-General  i'.  Barbour,  121  Mass. 
568  ;  Hammond  v.  Granger,  128  Mass.  272. 

382 


CHAP.  IX,]       FORM   OF  POWER   FOR   NEW   APPOINTMENT.         [§  287. 

trustees.^  Where  real  estate  is  given  in  trust  to  several  per- 
sons and  to  the  survivors  or  survivor  if  some  decline  to  act, 
the  others  have  the  whole  legal  estate  and  all  the  powers  of 
the  trust.^ 

§  287.  The  duties  and  powers  of  trustees  cannot  be  dele- 
gated to  others,  unless  there  is  express  authority  for  that 
purpose  given  in  the  instrument  creating  the  trust.^  It  fol- 
lows, that  a  power  to  appoint  new  trustees  can  seldom  or 
never  exist,  except  in  express  trusts  created  by  deed  or  will. 
The  person  who  creates  the  trust  may  mould  it  into  whatever 
form  he  pleases  :  he  may  therefore  determine  in  what  man- 
ner, in  what  event,  and  upon  what  condition  the  original 
trustees  may  retire  and  new  trustees  may  be  substituted. 
All  this  is  fully  within  his  power  ;  and  he  can  make  any 
legal  provisions  which  he  may  think  proper  for  the  continua- 
tion and  succession  of  trustees  during  the  continuance  of  the 
trust.*  And  vacancies  cannot  be  filled  in  any  other  way 
than  that  named  by  the  grantor,  unless  in  consequence  of  a 
statutory  provision,^  or  of  a  failure  on  the  part  of  the  remain- 
ing trustees  to  perform  the  duty  of  filling  the  vacancy,  in 
which  case  equity  will  interfere.^  The  power  to  appoint  new 
trustees  in  place  of  the  original  ones  can  only  be  given  by  the 
author  and  creator  of  the  trust.     For,  in  cases  where  courts 

1  In  re  Stokes  Trusts,  L.  R.  13  Eq.  333. 

2  Long  V.  Long,  62  Md.  33,  see  §  414,  Shockley  v.  Fisher,  75  Mo. 
498. 

3  Selden  v.  Vermilyea,  3  Comst.  336;  Wilkinson  v.  Parry,  4  Russ.  272 
Adams  v.  Paynter,  1  Coll.  532 ;  Chalmers  v.  Bradley,  1  J.  &  AV.  68 
Swarez  V.  Pumpelly,  2  Sandf.  Ch.  336;  Wilson  v.  Towle,  36  N.  H.  129 
Bayley  v.  Mansell,  4  Madd.  226 ;  Winthrop  v.  Att'y-Gen.  128  Mass.  258. 

*  Whelan  v.  Reilly,  3  W.  Va.  597.  The  testator  may  authorize  the 
trustee  appointed  by  him  to  appoint  his  successor  by  will.  Abbott,  Pet'r, 
55  Me.  580.  While  the  settlor  may  make  such  provisions  as  he  may  think 
best  for  filling  vacancies,  as  a  general  proposition,  yet  it  has  been  held  that 
a  power  reserved  to  an  assignor  in  a  deed  of  trust  for  creditors,  to  appoint 
new  trustees  to  fill  vacancies  occurring  in  the  board,  was  void  as  inter- 
fering with  the  rights  of  creditors,  Planck  v.  Schermerhorn,  3  Barb.  Ch. 
644 ;  Robins  v.  Embry,  1  Sm.  &  M.  Ch.  207. 

6  Golder  v.  Bressler,  105  111.  419. 

383 


§  288.]         FORM    OF    POWER    FOR    NEW    APPOINTMENT.       [CHAP.  IX. 

arc  called  upon  to  appoint  trustees,  authority  to  appoint 
successors  will  not  be  given,  but  recourse  must  be  had  to 
the  courts  toties  quoties}  There  is,  however,  an  exception 
to  this  rule  in  case  of  charitable  trusts  ;  for,  in  such  cases, 
to  save  costs,  and  for  convenience,  courts  of  equity  will  not 
only  appoint  new  trustees  to  fill  vacancies,  but  they  will 
sanction  a  scheme  for  the  administration  of  the  charity, 
which  provides  for  the  appointment  and  succession  of  trus- 
tees without  a  continual  recourse  to  legal  proceedings.^ 

§  288.  Every  well-drawn  instrument,  creating  trusts  in- 
tended to  continue  for  any  considerable  time,  should  contain 
authority  and  power  for  any  of  the  trustees  to  relinquish  the 
trust,  as  well  as  provisions  for  filling  vacancies  occasioned  by 
resignation,  death,  or  incapacity.  Such  provisions  save  the 
cost  and  trouble  of  constant  applications  to  courts.  In  fram- 
ing these  powers,  great  care  should  be  taken  to  provide  for 
ever}''  possible  contingency  in  which  a  resignation  or  new 
appointment  may  become  convenient  or  necessary.  The 
power  should  clearly  express  the  cases  in  which  new  trustees 
may  be  appointed,  and  embrace  every  event  which  can  render 
such  an  appointment  necessary  or  desirable,  as  the  death  of 
all,  any  one,  or  more  of  the  original  or  substituted  trustees, 
their  absence  from  the  country  or  State,  their  wish  to  resign, 
their  original  refusal  to  accept,  and  their  future  incapacity  or 
unfitness  to  discharge  the  duties ;  the  instrument  should  also 
point  out  clearly  and  by  whom  and  in  what  manner  the  new 
appointments  are  to  be  made.  Such  provisions  are  extremely 
convenient,  and  save  much  perplexity,  expense,  and  trouble  ; 
and  where  a  settlement  is  to  be  drawn  up  under  articles,  by 
the  direction  of  the  court,  it  will  order  such  provisions  to  be 

1  Wilson  V.  Towle,  36  N.  H.  129;  Oglander  v.  Oglander,  2  De  G.  & 
Sm.  381 ;  Holder  v.  Durbin,  11  Beav.  591 ;  Bowles  v.  Weeks,  14  Sim.  .591 ; 
Bayley  v.  Mansell,  4  Madd.  226 ;  Southwell  v.  Ward,  Taml.  314.  A  differ- 
ent practice  was  followed  in  Joyce  v.  Joyce,  2  Moll.  276  ;  Sampayo  v.  Gould, 
12  Sim.  426,  and  White  v.  White,  5  Beav.  221;  but  these  cases  are  not 
authorities  now.     See  Brown  v.  Brown,  3  Y.  &  C.  395. 

2  Attorney- General  v.  Winchelsea,  3  Bro.  Ch.  373;  Attorney-General 
V.  Shore,  1  M.  &  Cr.  394;  12  Sim.  426. 

384 


CHAP.  IX.]       FORM    OF    POWER    FOR    NEW   APPOINTMENT.         [§  288. 

inserted  as  are  just  and  reasonable.^  Where  it  is  necessary  to 
act  under  the  powers  thus  given  in  the  instrument  of  trust,  it 
is  of  the  utmost  consequence  that  there  should  be  an  exact 
compliance  with  the  power  and  authority  as  given.  For  if 
the  circumstances  do  not  justify  or  demand  a  new  appoint- 

^  Lindow  v.  Fleetwood,  6  Sim.  152;  Brewster  v.  Angell,  1  J.  &  W. 
628;  Sampayo  v.  Gould,  12  Sim.  42G;  Belmont  v.  O'Brien,  2  Kern.  394. 
The  following  form  is  approved  by  both  Mr.  Lewin  and  Mr.  Hill,  as  a 
proper  power  for  the  appointment  of  new  trustees:  — 

"  Provided  always,  and  it  is  hereby  further  declared,  that  if  the  trustees 
hereby  appointed,  or  any  of  them,  or  any  future  trustees  or  trustee  hereof, 
shall  die  (either  before  or  after  their  or  his  acceptance  of  the  trusts 
thereof),  go  to  reside  abi-oad,  desire  to  be  discharged  from,  renounce, 
decline,  or  become  incapable  or  unfit  to  act  in  the  trusts  of  these  presents, 
while  the  same  trusts  or  any  of  them  shall  be  subsisting,  then,  and  in 
every  or  any  such  cases,  and  so  often  as  the  same  shall  happen,  it  shall  be 
lawful  for  the  said  (the  cestuis  que  trust  [if  any]  for  life),  or  the  survivors  of 
them,  by  any  writing  or  writings,  under  their,  his,  or  her  hands  or  hand, 
attested  by  two  or  more  witnesses,  and  after  the  decease  of  such  survivor, 
then  for  the  surviving  or  continuing  trustees  or  trustee  hereof,  or  the 
executors  or  administrators  of  the  then  last  acting  trustee  (whether  such, 
surviving  trustees  or  trustee,  or  executors  or  administrators,  respectively, 
shall  be  willing  to  act  in  other  respects  or  not),  by  any  writing  or  writings, 
under  their  or  his  hands  or  hand,  attested  by  two  or  more  witnesses,  to 
nominate  and  substitute  any  person  or  persons  to  be  trustee  or  trustees 
hereof,  in  the  place  of  the  trustee  or  trustees  so  dying,  going  to  reside 
abroad,  desiring  to  be  discharged,  renouncing,  declining,  or  becoming 
incapable  or  unfit  to  act  as  aforesaid.  And  that,  so  often  as  any  new  trustee 
or  trustees  hereof  shall  be  appointed  as  aforesaid,  all  the  hereditaments, 
&c.,  which  shall,  for  the  time  being,  be  holden  upon  the  trusts  hereof,  shall 
be  thereupon  conveyed,  assigned,  and  transferred  respectively,  in  such 
manner  that  the  same  may  become  legally  and  effectually  vested  in  the 
acting  trustees  hereof  for  the  time  being,  to  and  for  the  same  uses,  and 
upon  the  same  trusts,  and  with  and  subject  to  the  same  powers  and  pro- 
visions as  are  herein  declared,  and  contained  of  and  concerning  the  same 
hereditaments  and  premises  respectively,  or  such  of  the  same  uses,  trusts, 
powers,  and  provisions  as  shall  then  be  subsisting  or  incapable  of  taking 
effect. 

"  And  that  every  new  trustee,  to  be  from  time  to  time  appointed  as 
aforesaid,  shall  thenceforth  be  competent  in  all  things  to  act  in  the  execu- 
tion of  the  trusts  hereof,  as  fully  and  effectually,  and  with  all  the  same 
powers  and  authorities  to  all  purposes  whatsoever,  as  if  he  had  hereby  been 
originally  appointed  a  trustee  in  the  place  of  the  trustee  to  whom  he  shall, 
■whether  immediately  or  otherwise,  succeed." 

VOL.  I.  — 25  385 


§  290.]  CARE   IN   APPOINTING   NEW  TRUSTEES.         [CHAP.  IX. 

ment,  as  contemplated  in  the  instrument  of  trust,  or  if  there 
is  any  irregularity  as  to  the  persons  by  whom  the  new  appoint- 
ment is  made,  or  as  to  tlie  manner  in  which  it  is  made,  the 
retiring  trustee  will  still  be  liable  for  any  breaches  of  trust 
which  may  be  committed,  and  the  new  trustee  will  be  inca- 
pable of  exercising  any  legal  authority  over  the  trust  prop- 
erty, and  will  be  a  trustee  only  de  son  tort,  if  he  interfere  ; 
and  any  purchaser  of  the  trust  property  may  find  his  title 
utterly  Avorthless.^  The  retiring  trustee  should  be  careful 
not  to  part  with  the  control  of  the  fund  before  tlie  new  trus- 
tee has  been  actually  appointed  and  qualified ;  for  if  he  trans- 
fer it  into  the  name  of  the  intended  trustee,  and  by  some 
accident  the  appointment  is  not  completed,  the  old  trustee 
still  remains  answerable  for  the  fund.^ 

§  289.  These  powers  of  appointing  successors  are  fre- 
quently matters  of  personal  confidence  reposed  in  the  trus- 
tees appointed  by  the  settlor,  and  they  are  always  matters  of 
general  trust  and  confidence  to  be  strictly  executed.  The 
court  will  not  prevent  the  exercise  of  discretion  given  for 
appointment,  but  will  see  that  it  is  used  to  subserve  the  pur- 
poses of  its  creation.^  Being  powers  given  to  third  persons 
over  the  projjcrty  of  others,  they  are  construed  with  great 
strictness,  and  a  great  variety  of  decisions  have  been  made 
upon  the  various  forms  in  which  the  power  has  been  expressed. 
Questions  have  arisen  :  (1)  As  to  the  time,  occasion,  or  event 
when  a  new  appointment  may  be  made  ;  (2)  As  to  the  per- 
son or  persons  by  whom  the  appointment  may  be  made ; 
(3)  As  to  the  persons  who  may  be  ap])ointed ;  (4)  As  to 
the  number  of  persons  who  may  be  aj^pointed  ;  (5)  As  to  the 
manner  of  making  the  new  appointment. 

§  290.  It  should  always  be  carefully  considered  whether 
the  circumstances  or  events  are  such  as  the  settlor  intended 
for  the  retirement  of  one  or  more  of  the  trustees  appointed 

1  Adams  v.  Paynter,  1  Col.  532;  Walker  v.  Brungard,  13  Sin.  &  M. 
723. 

2  Pearce  v.  Pearce,  22  Beav.  2i8.  3  Bailey  v.  Bailey,  2  Del.  Ch.  95. 

386 


CHAP.  IX.]  POWER   OP   APPOINTING   SUCCESSORS.  [§  290. 

by  him,  and  the  substitution  of  new  trustees  ;  thus  in  a  case 
where  the  power  provided  that,  "  in  case  either  of  the  trus- 
tees, the  said  A.  and  B.,  shall  happen  to  die,  or  desire  to  be 
discharged  from,  or  neglect  or  refuse  or  become  incapable  to 
act  in  the  trust,  it  shall  be  lawful  for  the  survivor  or  survivors 
of  the  trustees  so  acting,  or  the  executors  or  administrators 
of  tlie  last  surviving  trustee,  by  any  writing,  &c.,  to  nominate 
a  new  trustee."  Both  the  trustees  declining  to  act,  they  exe- 
cuted a  conveyance  to  two  other  persons,  as  an  appointment 
of  them  as  new  trustees  under  the  power ;  and  it  was  held 
that  the  power  was  not  well  executed,  that  the  word  survivor 
referred  to  the  trustee  "  continuing  to  act,"  that  it  was  the 
intention  of  the  testator  that  in  case  of  the  death,  refusal,  or 
incapacity  of  one  of  his  trustees,  the  remaining  one  who  had 
been  named  by  him,  and  who  was  the  object  of  his  confidence, 
should  have  the  power  of  associating  with  himself  some  other 
person,  and  that  the  event  of  both  declining  at  the  same  time 
was  not  provided  for.^  Where  a  settlement  upon  a  chapel 
contained  a  power  for  the  appointment  of  new  trustees  upon 
the  desertion  or  removal  of  any  existing  trustee,  Lord  Eldon 
held  that  the  case  of  a  trustee,  who  left  the  trust  on  account 
of  its  being  converted  by  the  other  trustees  to  purposes  dif- 
ferent and  distinct  from  the  intention  of  the  settlor,  was  an 
event  not  provided  for.^     And  so  where  cesfuis  que  trust  were 

1  Sharp  V    Sharp,  2  B.  &  Ad.  404;  Guion  v.  Pickett,  42  Miss.  77. 

2  Attorney- General  v.  Pearson,  3  Mer.  412.  In  Morris  v.  Preston,  7 
Ves.  547,  power  was  given  to  a  husband  and  wife,  or  the  survivor,  with 
the  consent  of  the  cotrustee  or  trustees,  to  appoint  any  new  trustee  or  trus- 
tees, and  upon  such  appointment  the  surviving  cotrustees  should  convey 
the  estate,  so  that  the  surviving  trustee  or  trustees,  and  the  new  trustee 
or  trustees,  might  be  jointly  concerned  in  the  trusts  in  the  same  manner 
as  such  surviving  trustee  and  the  person  so  dying  would  have  been  in  case 
he  were  living.  No  new  appointment  was  made  till  after  the  death  of 
both  the  original  trustees.  The  new  appointees  having  made  a  sale,  the 
purchaser  objected  to  the  title  on  the  ground  of  the  invalidity  of  their 
appointment  under  the  power;  but  the  objection  was  waived  without  ar- 
gument. Mr.  Sugden  regrets  tliat  the  opinion  9f  the  court  was  not  taken. 
2  Sugd.  on  Powei-s,  529.  lie  has,  however,  never  since  acted  on  the 
doctrine.  As  where  a  similar  power  was  given,  to  a  tenant  for  life,  of 
appointing  new  trustees,  one  trustee  died  and  the  other  became  bankrupt, 

387 


§  291.]  WHEN   THE   POWER   MAY   BE   EXERCISED.       [CHAP.  IX. 

to  appoint  a  trustee  upon  the  refusal  or  neglect  of  the  others 
to  act,  it  was  held  that  they  could  not  appoint  upon  the  death 
of  one  of  them.i  But  generally  where  the  power  to  appoint 
new  trustees  is  given  to  the  survivor  of  several  trustees,  it 
may  be  legally  exercised  by  the  continuing  trustee  upon  the 
resignation  or  refusal  of  the  others  to  act.^ 

§  291.  In  some  earlier  cases,  it  was  held  that  where  a  power 
was  given  to  the  surviving  trustee  or  trustees  to  appoint  new 
trustees  in  case  of  the  death  of  either  of  their  cotrustees,  it  did 
not  authorize  an  appointment  to  fill  a  vacancy  caused  by  the 
death  of  trustees  during  the  lifetime  of  the  testator,  upon  the 
ground  that  persons  dying  in  the  lifetime  of  the  testator  had 
never  filled  the  character  of  trustees  so  as  to  come  within  the 
terms  of  the  power ;  ^  but  these  are  overruled  by  the  later 
cases,  and  it  may  be  considered  as  settled  that  the  surviving 
trustee  or  trustees  may  fill  vacancies  caused  by  the  death  of 
persons  nominated  by  the  testator,  whether  they  die  in  his 
lifetime  or  afterwards.^  So  if  the  continuing  trustee  or  trus- 
tees are  to  appoint  upon  the  refusing  or  declining  of  any  of 
the  original  trustees,  they  may  appoint  upon  the  disclaimer 
of  any  one  or  more  ;  ^  and  so  a  payment  of  the  trust  fund  into 
court,  under  an  order  or  permission  to  that  effect,  is  a  refusi^ig 
or  declining  by  the  trustee  that  authorizes  the  exercise  of  the 
power.® 

and  it  was  objected  that  the  power  of  appointment  was  gone,  Sir  Edward 
Sugden  ruled  to  the  contrary,  ^e  Roche,  1  Conn.  &  Laws.  306;  2  Dr.  & 
War.  287. 

1  Guion  V.  Pickett,  42  Miss.  77. 

'■i  Sharp  V.  Sharp,  2  B.  &  Ad.  405 ;  Eaton  v.  Smith,  2  Beav.  236;  Travis 
V.  Illingworth,  2  Dr.  &  Sm.  344;  Cooke  v.  Crawford,  13  Sim.  91 ,  Hawkins 
V.  Kemp,  3  East,  410. 

3  Walsh  V.  Gladstone,  14  Sim.  5;  Winter  v.  Rudge,  15  Sim.  576. 

4  Lonsdale  v.  Beckett,  4  De  G.  &  Sm.  73;  In  re  Iladley's  Trust,  5  De 
G.  &  Sm.  67;  9  Eng.  L.  &  Eq.  67;  Noble  v.  Meymott,  14  Beav.  477. 

5  Re  Roche,  1  Conn.  &  Laws,  306;  Walsh  i'.  Gladstone,  14  Sim.  2: 
Mitchell  V.  Nixon,  1  Jr.  Eq.  155;  Cook  v.  Ingoldsby,  2  Ir.  Eq.  375; 
Travis  v.  Illingworth,  2  Dr.  &  Sm.  344. 

6  Re  William's  Settlement,  4  K.  &  J.  87. 

388 


CHAP.  IX.]       WHEN    THE    POWER    MAY    BE    EXERCISED.  [§  293. 

§  292.  If  the  settlement  provides  that  a  new  appointment 
may  be  made  on  either  of  the  trustees  becoming  unfit^  the 
power  may  be  exercised  if  one  of  them  becomes  hanhrupt ;  ^ 
but  if  the  word  is  inca])ahle  without  the  word  unfits  a  new 
appointment  cannot  be  made,  for  the  word  incapable  means 
personal  incapacity  and  not  pecuniary  embarrassment,^  and  a 
bankrupt  who  had  some  time  before  obtained  a  first-class  cer- 
tificate of  discharge  was  not  regarded  as  coining  within  the 
term  unfit.^  But  where  a  trustee  of  property  in  London  had 
been  domiciled  in  New  York  for  twenty  years,  he  was  de- 
clared incapable  without  the  meaning  of  the  word."^  Where  a 
power  declared  that,  "  if  the  trustees  were  not  deemed  suit- 
able and  sufficient  to  act  as  trustees  by  the  cestui  que  trusty  he 
might  remove  them,  it  was  held  to  be  a  matter  of  discretion 
in  the  beneficiary  to  remove  the  trustees  or  not."  ^ 

§  293.  Where  a  suit  is  already  pending  in  court  for  the 
administration  of  the  trust,  the  donees  of  •  the  power  to  ap- 
point cannot  exercise  it  without  first  obtaining  the  court's 
approval  of   the  person  proposed.^     When  it  is  desired  to 

1  In  re  Roche,  1  Conn.  &  Laws.  308;  2  Dr.  &  War.  287. 

2  Re  Watt's  Settlement,  9  Hare,  106 ;  Turner  v.  Maule,  5  Eng.  L.  &  Eq. 
222;  15  Jur.  761.  In  re  Bignold's  Settlement,  L.  R.  7  Ch.  223;  Re 
Blanchard,  3  De  G.,  F.  &  J.  131.  A  statute  in  Xew  York  provides  that 
administration,  &c.,  shall  not  be  granted  to  any  person  who  shall  be  judged 
incompetent  by  the  surrogate  to  execute  the  duties  of  the  trust  by  reason  of 
drunkenness,  improvidence,  or  want  of  understanding.  Under  this  statute 
it  was  held  that  mere  moral  turpilude  does  not  per  se  disqualify,  but  that 
pi'ofessional  gambling  was  such  evidence  of  improvidence  as  prima  facie  to 
disqualify.  Coope  v.  l^owerre,  1  Barb.  Ch.  45;  McMahoa  v.  Harrison, 
2  Seld.  443. 

3  Re  Bridgman,  1  Dr.  &  Sm.  164. 

*  Mennard  v.  Welford,  1  Sm.  &  Gif.  426.  The  opposite  doctrine  was 
previously  held  in  Witliington  v.  Withington,  16  Sim.  104;  O'Reilly  v. 
Alderson,  8  Hare,  101. 

^  Walker  v.  Brungard,  13  Sm.  &  ]\Iar.  758. 

6  Millaid  V.  Eyre,  2  Ves.  Jr.  94;  Webb  v.  Shaftesbury,  7  Ves.  480 
Peatfield  v.  Benn,  17  Beav.  552;  Kennedy  v.  Turnley,  6  Ir.  Eq.  399 
Attorney-General  v.  Clack,  1  Beav.  467;  Middleton  v.  Reay,  7  Hare,  106 

V.  Roberts,  1  J.  &  W.  251. 

389 


§  294.]       BY   WHOM    THE    POWER    MAY    BE    EXERCISED.     [CHAP.  IX. 

change  the  trustees  during  the  pendency  of  a  suit,  a  motion 
must  be  made,  and  such  motion  is  referred  to  a  -master  to 
report  upon  the  person  proposed.  The  master  is  to  regard 
the  power  of  appointment;  but  he  is  not  bound  to  approve 
the  proposed  person.^  If  an  appointment  is  made,  however, 
by  the  old  trustees,  it  is  not  contempt,  nor  is  it  altogether 
void  ;  but  it  puts  the  burden  upon  those  making  the  appoint- 
ment of  proving,  by  the  strictest  evidence,  that  it  was  just 
and  pro])er.  If  they  fail  in  such  proof,  the  act  will  be  de- 
clared null  and  void.^  So  if  the  trustee  or  other  person 
having  power  to  appoint  a  new  trustee  is  a  lunatic,  the 
court  must  appoint.^ 

§  294.  It  will  at  once  be  seen  that  the  power  of  appointing 
other  trustees  can  be  exercised  only  by  those  to  whom  it  is 
expressly  given.  Therefore,  if  the  power  is  not  given  to  any 
one,  new  trustees  can  be  appointed  only  by  the  court,*  except 
where,  as  in  England,  statutory  provisions  may  change  this 
rule.^  So  if  the  power  be  given  to  particular  persons  by 
name,  without  saying  more,  or  adding  words  of  survivorship, 
it  must  be  exercised  jointly,  and  upon  the  death  of  one  of 
them  the  power  will  be  gone.^  But  if  a  power  be  given  to  a 
class  consisting  of  several  persons,  as  to  my  "  trustees,"  "  my 
sons,"  or  "  my  brothers,"  and  not  to  individuals  by  their 
proper  names,  the  authority  Avill  exist  in  the  class,  so  long 
as  the  plural  number  remains,  although  it  may  have  been 
reduced  in  number  by  the  death  or  resignation  of  some ; "  and 

1  Webb  V.  Shaftesbury,  7  Ves.  487;  Middleton  v.  Reay,  7  Hare,  106. 

2  Cape  V.  Bent,  3  Hare,  249;  Attorney-General  v.  Clack,  1  Beav.  467; 
Baker  v.  Lee,  8  H.  L.  Ca.  495. 

3  In  re  Sparrow,  1  L.  R.  5  Ch.  662;  In  re  White,  L.  R.  5  Ch.  698; 
In  re  Cuming,  Id.  72;  In  re  Heaphy,  18  W.  R.  1070,  In  re  Nicholl,  Id. 
416. 

4  Wilson  V.  Towle,  36  N.  H.  129;  Pierce  v.  Weaver,  65  Tex.  44,  citing 
the  text. 

6  Act  44  and  45  Vict.  c.  41. 

6  Co.  Litt.  113  a;  1  Sugd.  Pow.  141. 

7  Gartland  v.  Mayott,  2  Vern.  105;  Eq.  Ca.  Ab.  202  ;  2  Freem.  105; 
Dyer,  177  a;  Co.  Litt.  112  b;  Byam  v.  Byam,  10  Beav.  58:  Belmont  v. 

390 


CHAP.  IX.]     BY   WHOM   THE   POWER   MAY   BE   EXERCISED.      [§  295. 

where  a  power  is  given  to  "  my  executors  "  as  a.  class,  it  may 
be  exercised  by  a  single  surviving  executor.^  A  power  to  be 
exercised  by  the  survivor  of  two  persons  cannot  be  executed 
by  the  one  dying  rirst,^  nor  even  by  the  two  acting  together 
during  the  lives  of  botli.^  So  a  power  given  to  the  surviving 
or  continuing  trustee  to  appoint  a  cotrustee,  if  either  of  the 
two  decline  to  act,  does  not  authorize  an  appointment  if  both 
decline,^  So  the  power  of  appointment  cannot  be  executed 
by  heirs^  personal  representatives,  or  assigns  of  any  trustee, 
unless  the  authority  is  expressly  given  in  the  instrument  of 
trust.^  In  these,  as  in  all  other  cases,  the  authority  will  be 
strictly  confined  to  those  persons  who  answer  the  precise 
description.  Thus  a  power  given  to  a  trustee,  his  heirs,  ex- 
ecutors, or  administrators,  cannot  be  executed  by  a  devisee 
or  assignee  of  the  trustee.^  It  is,  however,  well  established, 
that  a  power  given  to  a  surviving  trustee  may  be  executed  by 
a  continuing  or  acting  trustee,  although  a  cotrustee  who  dis- 
claimed is  still  living.'^ 

§  295.  The  number  of  parties  undertaking  to  execute  a 
power  must  come  within  the  exact  description  given  of  the 
number  of  those  who  are  to  execute  it ;  thus,  if  a  power  is 
given  to  be  exercised  by  a  certain  specified  number,  or  when 
they  are  reduced  to  a  certain  number,  it  cannot  be  exercised 
by  a  less  number,  and  is  gone  if  not  exercised  before  the 

O'Brien,  2  Kern.  391;  1  Sugd.  Pow.  144;  McKim  v.  Handy,  4  Md.  Ch. 
230. 

^  1  Sugd.  Pow.  244;  Davoue  v.  Fanning,  2  Johns.  Ch.  252. 

2  Bishop  of  Oxford  v.  Leighton,  2  Vern.  376. 

8  McAdam  v.  Logan,  3  Bro.  Ch.  320. 

4  Sharp  V.  Sharp,  2  B.  &  Ad.  405. 

6  Bradford  v.  Belfield,  2  Sim.  264;  Eaton  v.  Smith,  2  Beav.  236; 
Davoue  v.  Fanning,  2  Johns.  Ch.  252  ;  Titley  v.  Wolstenhohne,  7  Beav. 
424;  Granville  v.  McNeale,  7  Hare,  156;  Hall  v.  May,  3  Kay  &  J.  585; 
Cooke  V.  Crawford,  13  Sim.  91. 

6  Bradford  v.  Belfield,  2  Sim.  264 ;  Cole  v.  Wade,  16  Ves.  47 ;  Cape  v. 
Bent,  3  Hare,  245;  Ackleston  v.  Heap,  1  De  G.  &  Sm.  640;  McKim  v. 
Handy,  4  Md.  Ch.  230;  Mortimer  v.  Ireland,  6  Hare,  196. 

'  Lane  v.  Debenham,  11  Hare,  188;  Eaton  v.  Smith,  2  Beav.  236; 
Sharp  V.  Sharp,  2  B.  &  A.  405. 

391 


§  297.]  COURTS   WILL   NOT   INTERFERE.  [CHAP.  IX. 

number  is  reduced  below  the  number  which  is  named  for 
its  execution.^  But  the  power  may  be  executed  before  the 
trustees  are  reduced  to  the  lowest  number  specified,  as  where 
a  conveyance  to  twenty-five  trustees  for  a  chapel  directed  that 
when,  by  death  or  otherwise,  the  number  should  be  reduced 
to  fifteen,  a  majority  of  those  remaining  should  make  up  the 
number  to  twenty-five.  The  number  was  reduced  to  seven- 
teen ;  and  twelve,  the  others  dissenting,  elected  eight  new 
trustees,  and  it  was  held  a  good  appointment  under  the 
power.2 

§  296.  A  married  woman  may  exercise  the  power  of  ap- 
pointing new  trustees,  if  such  power  is  expressly  given  to  her, 
as  she  may  exercise  any  other  power  given  to  her  in  an  in- 
strument of  trust ;  ^  and  she  may  appoint  her  husband  trus- 
tee ;  *  but  an  infant  cannot  exercise  such  power  unless  it  is 
simply  collateral.^  The  power  may  be  given  to  a  firm,  their 
agents  and  assigns,^  but  not  to  a  court  that  has  no  authority 
by  law  to  act  in  the  appointment  of  trustees.  A  grantor  can- 
not confer  new  powers  on  a  court  though  it  may  on  the  judge 
as  an  individual.^  But  if  the  court  is  one  that  by  law  may 
act  in  the  appointment  of  trustees,  the  selection  of  the  grantor 
will  be  effective.^ 

§  297.  The  appointment  may  be  by  parol  unless  the  power 
otherwise  provides.^  Where  the  appointment  of  new  trustees 
is  given  to  the  discretion  of  the  acting  trustees,  courts  of 
equity  will  not  interfere  to  control  the  exercise  of  the  discre- 
tion if  the  old  trustees  act  in  good  faith,^^  and  if  the  adminis- 

1  Att'y-Gen.  v.  Floyer,  2  Yern.  748;  Att'y-Gen.  t-.  Litchfield,  .5  Ves. 
825. 

2  Dupleix  V.  Roe,  1  Anst.  86.  ^  ^,,te,  §  49. 

*  Tweedy  v.  Urquhart,  .30  Ga.  446.  ^  Ante,  §  52. 

*  Leggett  V.  Griinmett,  36  Ark.  498. 

»  Lernan  v.  Sherman,  117  111.  657;  18  Brad.  (111.)  368. 

8  Morrison  v.  Kelly,  22  111.  610. 

9  Leggett  V.  Grinimett,  36  Ark.  498. 

10  Bowditch  V.  Bannelos,  1  Gray,  220 ;  Hodg.son's  Settlement,  9  Hare, 
118.     In  Bowditch  v.  Bannelos,  above  cited,  Ch.  J.  Shaw  said:  "But 

392 


CHAP.  IX.]  COURTS   WILL   NOT   INTERFERE.  [§  297. 

tration  of  the  trust  is  not  already  in  the  hands  of  or  before 
the  court  by  a  pending  suit.^  Thus  the  old  trustees  in  a  case 
for  the  exercise  of  their  discretion  may  appoint  any  suitable 
person.  The  inquiry  in  such  cases  is  not  whether  the  per- 
son proposed  is  the  most  suitable,  but  whether  he  is  suitable.^ 
It  is  generally  the  duty,  however,  of  trustees  to  appoint  new 
trustees,  who  are  agreeable  to  the  cestuis  que  trust,  and  who 
would  administer  the  fund  for  their  interest ;  to  this  end  it  is 
generally  the  duty  of  the  trustees  to  consult  the  cestuis  que 
trust,  as  to  the  appointment.^  And  a  new  appointee  ought  to 
consult  the  cestuis  que  trust  before  accepting  the  office.*  An 
appointment  for  the  mere  purpose  of  having  a  particular  so- 
licitor employed  in  the  management  of  the  trust  ought  not 
to  be  allowed.^  Generally,  the  new  trustees  appointed  under 
a  power  should  be  amenable  to  the  jurisdiction  of  the  court ; 
but  where  the  cestui  que  trust  resides  abroad,  it  may  be  proper 
to  appoint  trustees  in  the  same  jurisdiction  with  the  bene- 

when  we  say  that  she  (the  cestui  que  trust)  had  power  at  her  pleasure  to 
appoint,  we  do  not  mean  to  say  that  this  was  an  arbitrary  power  to  appoint 
a  person  unfit  or  unsuitable  to  execute  such  a  trust,  as  a  minor,  an  idiot,  a 
pauper,  or  person  incapable  of  performing  the  duties.  It  must  be  a  per- 
son of  full  age,  sufficient  mental  and  legal  capacity,  and  in  all  respects 
capable  of  performing  the  required  duties.  In  case  of  trust  propeity  of 
real  and  personal  estate,  we  are  not  prepared  to  say  whether  an  alien, 
not  naturalized,  and  not  capable  by  law  to  hold  real  estate,  would  or  would- 
not  be  a  suitable  or  legal  appointment.  We  think  the  power  was  not  ex- 
hausted by  the  appointment  of  the  tirst  substitute,  but  that  the  same  power 
existed,  on  every  resignation,  to  appoint  a  new  trustee,  pursuant  to  the 
original  trusts  ;  but  that  this  power,  by  necessary  implication,  was  limited 
to  the  appointment  of  a  person  legally  capable  of  executing  it."  Whether 
the  nomination  of  her  husband,  on  account  of  the  conjugal  relation,  would 
have  been  incompatible  with  the  scope  of  the  whole  instrument,  and  would 
be  a  valid  objection,  or  whether  the  fact  that  another  appointee  was  a 
foreigner  having  no  domicile  in  the  United  States,  an  alien  not  natural- 
ized, would  be  a  valid  objection,  the  court  did  not  decide,  because  the 
nominations  were  withdrawn. 

'  Ante,  §  29:5.  2  Arite.  §278. 

8  O'Reilly  v.  Alderson,  8  Hare,  101;  Marshall  c.  Sladden,  7  Hare,  428, 
Peatfield  i;.  Benn,  17  Beav.  522;  Nagle's  Est.,  52  Pa.  St.  154. 

*  Ibid. 

6  Marshall  i^.  Sladden,  7  Hare,  428. 

393 


§  297.]  COURTS    WILL    NOT   INTERFERE.  [CHAP.  IX. 

ficiary.i  Though  if  the  court  is  called  upon  to  exercise  the 
power,  it  will  not  appoint  trustees  out  of  its  jurisdiction.^  Nor 
is  the  appointment  of  one  of  the  cestuis  que  trust  proper,  as 
each  of  the  cestuis  que  trust  has  a  right  to  a  disinterested  and 
impartial  trustee.^  This  rule  probably  only  affects  the  parties 
to  the  trust ;  for  if  a  cestui  que  trust  should  be  appointed,  and 
should  sell  the  estate  under  a  power  of  sale,  the  purchaser 
would  be  protected.*  Cestuis  que  trust  are  not  absolutely 
incapacitated  to  take  the  trusts,  and  courts  themselves  some- 
times appoint  them ;  ^  but  it  is  not  generally  desirable.  So, 
near  relationship  is  not  a  disqualification  ;  but  it  is  almost 
always  better  to  have  a  capable  person  not  intimately  con- 
nected with  the  cestuis  que  trust.^  Nor  should  the  donee  of 
a  power  to  appoint  nominate  himself,  for  trustees  cannot  even 
pay  over  the  assets  to  one  of  their  own  number.''  It  is  said, 
however,  that  if  a  trust  with  power  of  appointment  is  com- 
mitted to  trustees  and  the  survivor  of  them,  his  executors  or 
administrators,  and  the  trustees  all  die,  the  appointment  is  in 
the  executor  of  the  survivor ;  and,  as  the  instrument  of  trust 
declares  him  to  be  a  proper  person  to  execute  the  trust,  he 
may  appoint  himself  under  the  power.  Mr.  Lewin,  however, 
says  that  "  the  exercise  of  every  power  should  be  regulated  by 
the  circumstances  as  they  stand  at  the  time,  and  that  the 
limitation  to  executors  cannot  dispense  with  the  discretion  to 
"be  applied  afterwards."  ^ 

^  Meinertzhagen  v.  Davis,  1  Col.  C.  C.  335;  Ex  parte  Tunno,  1  Bail. 
Eq.  395. 

2  Guibert's  Trust,  13  Eng.  L.  &  Eq.  372.  But  see  Ex  parte  Tunno,  1 
Bail.  Eq.  395. 

3  Passingham  v.  Sherborne,  9  Beav.  424. 

*  Reid  V.  Reid,  30  Beav.  388. 

8  JE^x /)or/e  Glutton,  17  Jur.988;  21  Eng.  L.  &  Eq.  186;  Ex  parte  Cony- 
beare's  Settlement,  1  W.  R.  458;  Make  v.  Norrie,  21  Hun  (N.  Y.),  128. 

^  Wilding  V.  Bolder,  21  Beav.  222,  where  the  husband  of  a  cestui  que 
trust  was  appointed  trustee,  the  court  required  him  to  undertake  to  apply 
for  the  appointment  of  a  new  trustee  in  case  he  became  sole  trustee,  18 
W.  R.  416;  21  L.  T.  (n.  s.),  781. 

^  V.  Walker,  5  Russ.  7;  Stickney  v.   Sewell,   1  M.   &  C.   14; 

Westover  v.  Chapman,  1  Col.  C.  C.  177 

*  Lewin  on  Trusts,  472  (5th  Lond.  ed.). 

394 


CHAP.  X.]  ESTATE    OF    THE   TRUSTEE.  [§  298. 


CHAPTER   X. 

NATURE,   EXTENT,   AND    DURATION   OF   THE   ESTATE  TAKEN   BY 

TRUSTEES. 

§  298.    Where  trustees  take  and  hold  no  estate,  although  an  express  gift  is  made  to 
them.     Statute  of  uses. 

§  299.   Effect  of  the  statute  of  uses  upon  conveyancing  in  the  several  States. 

§  300.    Effect  of  the  statute  in  the  rise  of  trusts. 
§§  301,  302.     Rules  of  construction  which  gave  rise  to  trusts. 

§303.  The  word  "seized." 

§  304.  The  primary  use  must  be  in  the  trustee  to  raise  a  trust. 

§§  305,  306.     Personal  property  not  within  the  statute. 
§§  307,  308.     Where  the  statute  executes  trusts  as  uses,  and  where  it  does  not. 

§  309.  Wliere  a  charge  upon  an  estate  will  vest  an  estate  in  trustees,  and 

where  not. 

§  310.  Where  the  trust  is  for  the  sole  use  of  a  married  woman. 

§  311.  Trusts  of  personalty  are  not  executed  by  tlie  statute. 

§  312.   The  statute  only  executes  the  exact  estate  given  to  the  trustee ;   but  the 
trustee  may  take  an  estate  commensurate  with  the  purposes  of  the  trust 
where  it  is  unexecuted  by  the  statute.     Rules. 
§§  313,  314.   Courts  may  imply  an  estate  in  the  trustee  where  none  is  given. 
§§  315,  316.    May  enlarge  the  estate  of  the  trustee  for  the  purposes  of  the  trust. 

§  317.    Illustrations,  explanations,  and  modifications  of  the  rule. 
§§  318,  319.    Rule  in  respect  to  personal  estate. 

§  320.    Distinctions  between  deeds  and  wills  in  England  and  the  United  States. 

§  298.  It  may  happen  that  although  words  of  express  trust 
are  used  in  the  grant  or  bequest  of  an  estate  to  a  trustee,  yet 
no  estate  vests  or  remains  in  the  trustee.  This  may  be  be- 
cause only  a  power  is  given  and  no  estate,  as  wliore  a  testator 
simply  directs  his  executor  to  sell  certain  property  and  apply 
the  proceeds  to  certain  purposes  instead  of  granting  the 
property  to  the  executor  or  trustee  to  sell,  &c.,  or  because 
the  statute  of  uses  executes  the  legal  estate  at  once  in  the 
cestui  que  trust}  Thus,  if  A.  grants  or  bequeaths  land  to  B. 
and  his  heirs,  in  trust  for  C.  and  his  heirs,  the  trustee,  B., 
will  take  nothing  in  the  land,  but  tlie  legal  title,  as  well  as 

1  West  V.  Fitz,  109  111.  425. 

395 


§  298.]  ESTATE    OF    THE    TRUSTEE.  [CHAP.  X. 

the  beneficial  use,  will  vest  immediately  in  C;  ^  for  the  statute 
of  uses,2  so  called,  executes  the  possession  and  the  legal  title 
in  the  same  person  to  whom  the  beneficial  interest  is  given. 
As  stated  in  previous  sections,^  a  large  part  of  tlie  land  in 
England  was  at  one  time  held  to  uses.  The  legal  title  was  in 
one  person,  but  upon  the  trust  and  confidence  that  such  per- 
son would  apply  it  to  the  use  of  some  person  named,  or 
that  such  legal  owner  would  permit  some  other  person  to 
have  the  possession,  use,  and  income  of  the  estate.  This 
system,  originating  partly  in  fraud  of  the  law,  and  partly 
in  the  necessities  and  convenience  of  the  subject,  became  at 
last  the  source  of  great  abuses.  To  remedy  these  abuses, 
the  statute  of  uses  was  enacted.*     This  statute  executes  the 

1  Austin  V.  Taylor,  1  Eden,  .301 ;  Williams  v.  Waters,  14  M.  &  W.  166; 
Robinson  v.  Grey,  9  East,  1;  Chapman  i'.  Blissett,  Ca.  t.  Talbot,  150; 
Broughton  v.  Langley,  2  Salk.  150;  2  Ld.  Kaym.873;  Thatcher  i'.  Oinans, 
;]  Pick.  521;  Upham  v.  Varney,  15  N.  H.  406;  Kinch  v.  Ward,  2  Sim.  & 
St.  409,  and  see  Doe  v.  Biggs,  2  Taunt.  109;  Shapland  v.  Smith,  1  Bro. 
Ch.  75,  and  notes;  Boyer  v.  Cockerell,  3  Kan.  282;  Witham  v.  Brooner, 
63  111.  344. 

2  27  Henry  VIII.  c.  10,  §  1. 

3  Ante,  §§  3,  4. 

*  Ante,  §§  5,  6,  7.  And  see  the  preamble  of  the  statute.  The  first 
section  of  the  statute  was  as  follows:  "  That  where  any  person  or  persons 
stand  or  be  seized,  or  at  any  time  hereafter  shall  happen  to  be  seized  of 
and  in  any  honors,  castles,  manors,  lands,  tenements,  rents,  services,  re- 
versions, remainders,  or  other  hereditaments,  to  the  use,  confidence,  or 
trust  of  any  other  person  or  persons,  or  of  any  body  politic,  by  reason  of 
any  bargain,  sale,  feoffment,  fine,  recovery,  covenant,  contract,  agreement, 
will,  or  otherwise,  by  any  manner  of  means,  whatsoever  it  be;  that  in 
every  such  case,  all  and  every  such  person  and  persons,  and  bodies  politic 
that  have  or  hereafter  shall  have  any  such  use,  confidence,  or  trust  in  fee- 
simple,  fee-tail,  for  term  of  life,  or  for  years,  or  otherwise,  or  any  use, 
confidence,  or  trust  in  remainder  or  reverter,  shall  from  henceforth  stand 
and  be  seized,  deemed  and  adjudged,  in  lawful  seizin  estate  and  possession, 
of  and  in  the  same  honors,  castles,  manors,  lands,  tenements,  rents,  ser- 
vices, reversions,  remainders,  and  hereditaments,  with  their  appurtenances, 
to  all  intents,  constructions,  and  purposes,  in  the  law  of  and  in  such  like 
estates,  as  they  had  or  shall  have  in  use,  trust,  or  confidence  of  or  in  the 
same;  and  that  the  estate,  title,  right,  and  possession  that  was  in  such 
person  or  persons  that  were  or  hereafter  shall  be  seized  of  an^  lands, 
tenements,  or  hereditaments,  to  the  use,  confidence,  or  trust  of  any  such 

396 


CHAP.  X.]  STATUTE    OP    USES.  [§  299. 

use  by  conveying  the  possession  to  the  use,  and  transfer- 
ring the  use  into  possession,  thereby  making  the  cestui  que 
use  complete  owner  of  the  estate,  as  well  at  law  as  in  equity. 
It  does  not  abolish  the  conveyance  to  uses,  but  only  annihi- 
lates the  intervening  estate,  and  turns  the  interest  of  the 
cestui  que  use  into  a  le{/al  instead  of  an  equitable  estate.^  A 
use,  a  trusty  and  a  confidence  is  one  and  the  same  thing,  and 
if  an  estate  is  conveyed  to  one  person  for  the  use  of,  or  uj)on 
a  trust  for,  another,  and  nothing  more  is  said,  the  statute 
immediately  transfers  the  legal  estate  to  the  use,  and  no 
trust  is  created,  although  express  words  of  trust  are  used.^ 
So  absolute  is  the  statute  that  it  will  operate  upon  all  con- 
veyances in  the  words  above  stated,  although  it  was  the  plain 
intention  of  the  settlor  that  the  estate  should  vest  and  remain 
in  the  first  donee  ;  for  the  intention  of  the  citizen  cannot  con- 
trol express  enactments  of  the  legislature,^  or  positive  rules 
of  property. 

§  299.  The  statute  of  uses  is  in  force  in  most  of  the  United 
States,*  but  where  the  statute  is  not  in  force  either  by  adop- 
tion or  by  re-enactment,  and  even  where  it  is  expressly  re- 
pealed and  a  form  of  deed  is  enacted,  a  knowledge  of  the  law 
of  uses  is  necessary  in  order  to  understand  and  apply  the 

person  or  persons,  or  of  any  body  politic,  be  from  henceforth  clearly  deemed 
and  adjudged  to  be  in  him  or  them,  that  have,  or  hereafter  shall  have,  such 
use,  confidence,  or  trust  after  such  quality,  manner,  form,  and  condition 
as  they  had  before,  in  or  to  the  use,  confidence,  or  trust  that  was  in  them." 
Saund.  on  Uses,  70-82. 

1  Eustace  v.  Seamen,  Cro.  Jac.  G96;  2  Black.  Com.  333,  338;  Thatcher 
V.  Omans,  3  Pick.  529;  Hutchins  v.  Heywood,  50  N.  H.  495. 

2  Terry  v.  Collier,  11  East,  377;  Right  v.  Smith,  12  East,  451; 
Broughton  v.  Langley,  2  Salk.  679;  Ease  v.  Howard,  Pr.  Ch.  338,  345; 
Hammerston's  Case,  Dyer,  166  a,  note;  Ramsay  r.  Marsh,  2  McCord,  252; 
Moore  v.  Shultz,  13  Pa.  St.  98;  Jackson  v.  Fish,  10  Johns.  456;  Parks  v. 
Parks,  9  Paige,  107. 

8  Carwardine  v.  Carwardine,  1  Eden,  36;  Gregory  v.  Henderson,  4 
Taunt.  772.  In  this  case  the  intent  of  the  testator  was  loosely  talked  of, 
but  it  was  an  active  trust,  as  pointed  out  by  Heath,  J.  Doe  v.  Collier,  11 
East,  377;  Shapland  v.  Smith,  1  Bro.  Ch.  75;  1  Sugd.  Yen.  309,  314. 

*  4  Kent,  Com.  299;  1  Green.  Cru.  tit.  11,  Use,  c.  3,  §  3,  note. 

397 


§  299.]  ESTATE    OP    THE    TRUSTEE.  [CHAP.  X. 

common  forms  of  conveyance.^  The  statute  of  uses,  and  the 
doctrines  it  established  are  so  interwoven  with  the  history  of 
every  American  State,  and  with  the  growth  of  its  jurispru- 
dence in  regard  to  real  estate,  that  the  law  of  tenures  is 
necessarily  interpreted  in  America  by  the  precedents  estab- 
lished under  the  statute  ;^  and  in  this  branch  of  the  law,  as 
in  all  others,  it  is  impossible  to  obtain  a  clear  perception  of 
its  present  state,  without  a  full  knowledge  of  the  successive 
steps  by  which  the  latest  development  has  been  reached. 
The  application  of  the  statute  has  been  very  much  modified 
in  many  of  the  States,  but  the  general  idea  is  still  acted 
upon.^     Mr.  Washburn  remarks,  that  it  is  not  a  fair  inference 

1  Walk.  Am.  Law,  311;  Helfensteine  v.  Garrard,  7  Ohio,  275;  2 
Washb.  on  Real  Prop.  152. 

2  4  Kent,  Com.  299-3U1. 

2  In  Maine,  a  person  may  convey  land  by  deed  acknowledged  and 
recorded.  Rev.  Stat.  1857,  c.  73,  §  1.  And  a  deed  may  be  any  species 
of  conveyance,  not  plainly  repngnant  in  terms,  and  necessaiy  to  give 
effect  to  the  intention  of  the  parties.  Emery  v.  Chase,  5  Me  235.  And 
the  statute  of  uses  is  in  force.  Shapleigh  v.  Pilsbury,  1  Me.  271 ;  Emery 
V.  Chase,  5  Me.  232;  Webster  v.  Cooper,  14  How.  496;  Morden  i-.  Chase, 
32  Me.  329. 

In  New  Hampshire,  the  form  in  which  lands  may  be  conveyed  is 
fixed  by  statute.  Rev.  Stat.  But  this  does  not  exclude  other  known 
forms  of  conveyance  at  common  law,  and  the  statute  of  uses  is  in  full 
force.  Exeter  v.  Odiorne,  1  N.  H.  232;  Chamberlain  v.  Crane,  Id.  64; 
French  v.  French,  3  N.  H.  234;  Upham  v.  Yarney,  15  N.  H.  402  ;  Hayes 
V.  Tabor,  41  N.  H  526;  Bell  v.  Scammon,  15  N.  H.  394;  Pritchard  v. 
Brown,  4  N.  H.  397;  Dennett  v.  Dennett,  40  N.  H.  498;  Hutchins  v. 
Ileywood,  50  N.  H.  496. 

In  Vermont,  there  is  similar  legislation  as  to  the  form  of  conveyances ; 
but  Chief-Justice  Redfield  held  that  the  English  statute  of  uses  was  not 
in  force,  for  the  reason  that  their  court  of  equity  could  carry  out  the 
intention  of  parties  without  the  help  of  the  statute.  Gorham  v.  Daniels, 
23  Vt.  600;  Sherman  v.  Dodge,  28  Vt.  26.  Mr.  Justice  Thompson,  of 
the  United  States  court  for  the  district,  held  the  contrary.  Soc.  &c.  v. 
Hartland,  2  Paine,  C.  C.  536. 

In  Massachusetts,  a  deed  acknowledged  and  recorded  conveys  land 
without  any  other  ceremony.  Gen.  Stat.  1860,  c.  89.  §  1.  The  form  of 
deed  in  general  use  gives,  grants,  bargains,  sells,  and  conveys,  upon  a  con- 
sideration, limiting  the  estate  to  the  grantee  and  his  heirs  to  their  use. 
These  words  prevent  a  resulting  use  in  the  grantor;  and  it  is  a  convey- 

398 


CHAP.  X.]  STATUTE    OP    USES.  [§  299. 

that  the  doctrine  of  uses  would  be  inapplicable  in  any  State 
where  they  are  not  declared  not  to  exist,  either  because  no 

ance  at  common  law,  since  the  grantee  and  the  cestui  que  use  is  the  same 
person.  But  if,  for  any  reason,  it  is  necessary,  in  order  to  give  effect  to 
the  conveyance,  to  construe  it  as  operating  under  the  statute  of  uses,  the 
court  will  do  so.  Cox  v.  Edwards,  14  Mass.  492;  Marshall  v.  Fish,  6 
Mass.  24;  Hunt  v.  Hunt,  14  Pick.  374;  Wallis  v.  Wallis,  4  Mass.  135; 
Pray  v.  Pierce,  7  Mass.  381;  Russell  v.  Coffin,  8  Pick.  143;  Blood  v. 
Blood,  Id.  80;  Parker  v.  .Nichols,  7  Pick.  Ill;  Gale  v.  Coburn,  18  Pick. 
397;  Brewer  v.  Hardy,  22  Pick.  376;  Thatcher  v.  Onians,  3  Pick.  522; 
Norton  v.  Leonard,  12  Pick.  157;  Newhall  v.  Wheeler,  7  Mass.  189;  Cha- 
pin  V.  Univer.  Soc,  8  Gray,  580;  Baptist  Soc.  v.  Hazen,  100  Mass.  322  ; 
Diirant  v.  Ritchie.  4  Mason,  45;  Northampton  Bank  v.  Whiting,  12  Mass. 
104  ;  Johnson  t'.  Johnson,  7  Allen,  197. 

In  Rhode  Island,  deeds  of  bargain  and  sale,  lease  and  release,  and 
covenants  to  stand  seized,  are  recognized  by  statute.  Rev.  Stat.  (1857) 
p.  335.  And  the  statute  of  uses  would  seem  to  be  in  partial  force.  1 
Lomax,  Dig.  188;  Nightingale  v.  Hidden,  7  R.  I.  132. 

In  Connecticut,  the  act  of  acknowledging  and  recording  a  deed  is  held 
equivalent  to  livery  of  seizin.  Barrett  r.  French,  1  Conn.  3.54.  But  the 
statute  of  uses  is  held  to  be  part  of  its  common  law.  Bacon  i'.  Taylor, 
Kirb.  368;  Barrett  v.  French,  1  Conn.  354;  Bryan  v.  Bradley,  16  Conn. 
474. 

In  New  York,  previous  to  1827,  the  English  statute  of  uses  was  in  full 
force.  Jackson  v.  Myers,  3  Johns.  388;  Jackson  v.  Fish,  10  Johns  456; 
Jackson  v.  Root,  18  Johns.  79;  Jackson  v.  Cary,  16  Johns.  302;  Jackson 
V.  Dunsbagh,  1  Johns.  Ca.  91;  Jackson  v.  Cadwell,  1  Cow.  622.  After 
that  year,  the  rules  of  the  common  law  were  repealed;  all  uses  and  trusts 
were  abolished,  except  such  as  were  expressly  authorized.  Every  interest 
in  land  is  declared  to  be  a  legal  right,  and  cognizable  in  a  court  of  law 
except  where  it  is  otherwise  provided.  A  conveyance  by  grant,  assignment, 
or  devise  is  substituted  for  a  conveyance  to  uses,  and  future  interests  in 
lands  may  be  conveyed  by  grant.  3  Rev.  Stat.  15  (5th  ed.);  4  Kent.  300. 
It  has,  however,  been  determined  that  if  land  is  granted  to  one  in  fee  in 
trust  for  another,  the  cestui  que  trust  takes  the  estate  absolutely,  but  sub- 
ject, however,  to  such  incumbrances  as  the  trustee  made  upon  the  estate 
at  the  time  of  the  conveyance,  as  if  the  trustee  should  give  back  a  mort- 
gage for  the  purchase-money,  it  would  be  held  to  be  one  transaction. 
Rawson  v.  Lampman,  1  Seld.  456.  Nor  have  these  statutes  any  applica- 
tion to  securities  by  mortgage.  King  v.  Merchants'  Exchange  Co.,  1 
Seld.  547. 

In  New  Jersey,  the  statute  of  uses  is  substantially  re-enacted.  Den  v. 
Crawford,  3  Ilalst.  107;  Prince  v.  Sisson,  13  N.  J.  168. 

In   Pennsylvania,  a  statute  declares  all  deeds  in  a  prescribed  form 

399 


§  290.]  ESTATE   OF   THE   TRUSTEE.  [CHAP.  X. 

case  has  arisen  in  the  courts  of  the  State  to  test  the  question, 
or  because  a  form  of  deed  not  known  under  the  statute  of 
uses  may  have  been  declared  by  the  statute  of  a  State  suffi- 

equivalent  to  a  feoffment  with  livery  of  seizin  at  common  law,  and  the 
statute  of  uses  is  also  in  full  force.  Opinion  of  the  Judges,  3  Binn.  599; 
Ashhurst  v.  Given,  5  Wat.  &  Ser.  323;  Welt  v.  Franklin,  1  Binn.  502; 
Sprague  v.  Woods,  4  Wat.  &  Ser.  192;  O'Kinson  v.  Patterson,  1  Wat.  & 
Ser.  395;  Hurst  v.  McNeil,  1  Wash.  C.  C.  70;  Franciscus  v.  Reigart,  4 
Watts,  118.  Indeed,  at  one  time  the  Pennsylvania  courts  carried  the 
application  of  the  statute  to  an  unusual  extent,  and  held  that  equitable 
were  converted  into  legal  estates  in  all  cases  except  active  trusts,  and  even 
then  if  the  purposes  of  the  trust  did  not  furnish  a  legitimate  reason  for 
not  executing  the  trust  in  the  beneficiary.  Kuhn  v.  Newman,  26  Pa.  St. 
227;  Whichcote  v.  Lyle,  28  Pa.  St.  73;  Bush's  App.,  33  Pa.  St.  85;  Kay 
i;.  Scates,  37  Pa.  St.  31.  But  these  cases  were  overruled,  and  the  law 
restored  to  its  former  condition,  in  Barnett's  App.,  46  Pa.  St.  392; 
Shankland's  App.,  47  Pa.  St.  113;  Earp's  App.,  75  Pa.  St.  119;  Deibert's 
App.,  78  Pa.  St.  296. 

In  Delaware,  the  statute  provides  that  lands  may  be  transferred  by 
deed  without  livery,  and  that  the  legal  estate  shall  accompany  the  use, 
and  pass  with  it.     Rev.  Code  (1852),  p  266. 

In  Maryland,  the  English  statute  of  uses  is  the  foundation  of  their 
conveyances,  and  their  rules  of  construction  of  it,  are  nearly  similar  to  the 
English  rules.  Lewis  v.  Beall,  4  Harr  &  McH.  488;  Mason  v.  Small- 
wood,  Id.  484;  Matthews  v.  Ward,  10  Gill  &  J.  443;  Cheney  v.  Watkins, 
1  Harr.  &  J.  527;  AYest  v.  Biscoe,  6  Harr.  &  J.  465;  Calvert  v.  Eden,  2 
Harr.  &  McH.  331. 

In  Virginia,  the  statute  of  uses  was  a  part  of  the  colonial  law;  but  it 
was  repealed  in  1792.  Afterwards,  in  1819,  and  in  Rev.  Code  (1849), 
p.  502,  a  partial  substitute  was  adopted,  by  which  the  possession  was 
transferred  to  the  use  only  in  cases  of  deeds  of  bargain  and  sale,  lease  and 
release,  and  deeds  operating  by  way  of  covenant  to  stand  seized  to  uses. 
If  uses  or  trusts  are  raised  by  any  other  form  of  conveyance,  as  by  devise, 
they  remain,  as  before  the  statute  of  Henry  VIH. ,  mere  equitable  estates, 
not  cognizable  by  courts  of  law.  Bass  v.  Scott,  2  Leigh,  359 ;  1  Lomax, 
Dig.  188;  2  Mat.  Dig.  34;  Rowletts  v.  Daniel,  4  Munf.  473;  Tabb  v. 
Baird,  3  Call,  475;  Duvall  v.  Bibb,  Id.  362 

In  North  Carolina,  the  statute  is  similar  to  the  statute  of  Virginia,  and 
the  statute  of  uses  has  nearly  the  same  application.  Rev.  Code  (1854), 
p.  270;  Den  v.  Hanks,  5  Ired.  30;  Smith  v.  Lockabill,  76  N.  C.  465. 

In  South  Carolina,  the  statute  of  uses  was  re-enacted  in  terms.  2  Stat, 
at  Large,  p.  467;  Ramsay  r.  Marsh,  2  McCord,  252;  Redfern  v.  Middle- 
ton,  Rice,  464 ;  Kinslerr.  Clark,  1  Rich.  170;  Chancellor  r.  Windham,  Id. 
161;  Laurens  v.  Jenney,  1  Spears,  356;  McNish  i'.  Guerard,  4  Strob.  74. 

400 


CHAP.  X.]  STATUTE   OP   USES.  [§  299. 

cient  to  convey  lands.^     It  is  true  that  Lord  Hardwicke  is 
reported  to  have  said,  that  the  statute  of  uses  had  no  other 

In  Georgia,  the  form  of  deed  in  general  use  is  that  of  bargain  and  sale, 
■which  operates  under  the  statute  of  uses.     Adams  v.  Guerard,  29  Ga.  676. 

In  Florida,  there  is  a  statute  similar  to  the  statute  of  Virginia,  and 
the  statute  of  uses  is  in  partial  force.  Thompson's  Dig.  p.  178,  §  4;  1 
Lomax,  Dig.  188. 

In  Alabama,  the  statute  of  uses  is  part  of  the  law  of  the  State.  Horton 
V.  Sledge,  29  Ala.  478;  You  v.  Flinn,  34  Ala.  411. 

In  Mississippi,  there  is  a  statute  similar  to  the  statute  of  Virginia. 
How.  &  Hutch.  Dig.  p.  349. 

In  Louisiana,  conveyances  originated  under  the  civil  law,  or  the  code 
of  France. 

In  Texas,  a  statute  recognizes  deeds  of  bargain  and  sale,  which  operate 
under  the  statute  of  uses. 

In  Arkansas,  the  mode  of  conveyance  is  by  deeds  of  bargain  and  sale, 
and  of  course  the  statute  of  uses  must  be  a  part  of  their  law. 

In  Tennessee,  the  statute  of  uses  is  not  in  force,  though  deeds  good  at 
common  law  or  under  the  statute  of  uses  are  valid  to  convey  estates-,  but 
if  uses  are  raised,  they  remain  as  before  the  statute  of  Henry  VIII. 

The  statute  of  Kentucky  is  in  nearly  the  same  words  as  the  statute  of 
Virginia,  and  the  statute  of  uses  has  the  same  application.  Rev.  Stat.  p. 
279  (ed.  1860). 

In  Ohio,  the  statute  of  uses  was  never  in  force,  and  if  trusts  or  uses 
are  raised  by  the  form  of  conveyance  they  remain  unexecuted,  and  mere 
equitable  estates,  cognizable  only  in  courts  of  equity.  Williams  v.  Pres- 
byterian Church,  1  Ohio  St.  497;  Helfensteine  v.  Garrard,  7  Ham.  276; 
Foster  v.  Dennison,  9  Ohio,  124;  Walker,  Am.  Law,  124;  Thompson  v. 
Gibson,  2  Ohio,  439. 

In  Indiana,  the  statute  of  uses  is  enacted  in  substance.  Rev.  Stat.  (1843) 
p.  447;  Linville  v.  Golding,  11  Ind.  374;  Nelson  v.  Davis,  3.5  Ind.  474. 

In  Illinois,  the  statute  is  very  similar  to  the  statute  of  Virginia.  2 
Stat.  (1858)  p.  959;  Witham  v.  Brooner,  68  111.  344. 

In  Michigan,  the  laws  are  similar  to  the  statutes  of  New  York,  by 
which  all  uses  and  tru.sts  are  aboli-shed.  2  Compt.  Laws  (1857),  p.  824; 
Ready  v.  Kearsley,  14  Mich.  228. 

In  Missouri,  tiie  statute  of  uses  is  re-enacted  in  substance.  Rev.  Stat. 
(1845)  p.  218;  Guest  v.  Farley,  19  Miss.  147. 

In  Iowa,  uses  are  recognized,  and  deeds  may  operate  under  the  statute 
of  uses.     Pierson  o.  Armstrong,  1  Iowa,  282. 

In  Wisconsin,  the  statute  is  very  similar  to  the  statute  of  New  York, 
and  all  uses  and  trusts  are  abolished  except  those  specially  provided  for. 
Rev.  Stat.  (1858)  p.  529.        

1  2  Washbuj-n  on  Real  Property,  154. 
VOL.  I.  —  26  401 


§  300,]  ESTATE   OF  THE  TRUSTEE,  [CHAP.  X. 

effect  than  to  add  at  most  three  words  to  a  conveyance ;  ^ 
Mr.  Kent  thinks  this  rather  too  strongly  expressed,  and  says 
that  the  doctrine  of  the  statute  has  insinuated  itseK  deeply 
and  thoroughly  into  every  branch  of  the  jurisprudence  of  real 
property .2  It  seems  to  have  been  the  intention  of  the  stat- 
utes of  the  various  States  to  supply  the  want  of  livery  of 
seizin,  and  to  make  all  deeds,  or  other  writings  executed  with 
certain  formalities,  equivalent  to  the  old  feoffments ;  there- 
fore, any  old  and  well-established  rule  of  conveyancing  ought 
not  to  be  considered  as  abolished,  in  the  absence  of  express 
provisions  to  that  effect. 

§  300.  The  statute  of  uses  at  the  time  when  it  was  passed 
had  an  immense  effect  upon  the  tenures  of  the  realm.  Many 
interests  in  land  which  had  been  merely  equitable,  and  cog- 
nizable only  according  to  the  rules  of  equity,  became  at  once 
legal  interests,  cognizable  in  courts  of  common  law.  Many 
persons  who  were  seized  of  estates  to  uses,  and  who  only 
could  sue  or  be  sued  at  law  in  relation  to  the  same,  ceased  at 
once  to  have  any  title  either  at  law  or  equity.  Although  it 
is  probable  that  it  was  the  intent  of  the  statute  to  convert 
all  uses  or  trusts  into  legal  estates,^  yet  the  convenience  to 
the  subject  of  being  able  to  keep  the  legal  title  to  an  estate 
in  one  person,  while  the  beneficial  interest  should  be  in  an- 
other, was  too  great  to  be  given  up  altogether,  and  courts 
of  equity  were  astute  in  finding  reasons  to  withdraw  a  con- 
veyance from  the  operation  of  the  statute.*     Three  principal 

In  Minnesota,  deeds  may  be  in  form  of  bargain  and  sale,  which  oper- 
ate under  the  statute. 

In  California,  conveyiinces  orijjinatpd  under  the  old  Spanish  law.  and 
probably  the  statute  of  uses  has  little  or  no  influence  upon  the  law  of  the 
State. 

In  Kansas,  a  conveyance  to  A.  to  the  use  of  B.  vests  the  estate  at  once 
in  B,,  by  force  of  the  statute.     Bayer  r.  Cockerill,  -3  Kan.  292. 

1  Hopkins  v.  Hopkins,  1  Atk.  591.  -  4  Kent,  Com.  301. 

8  1  Green.  Cruise,  tit.  12,  c.  1,  §  1. 

^  Jlr.  Cruise  thought  that  the  strict  construction  put  upon  the  statute 
by  the  judges  in  a  great  measure  defeated  its  effect.  Id.  Mr  Ulackstone 
is  of  a  similar  opiuion.     2  Black.   Com.   3oG.     And  Lord  Mansfield,  in 

402 


CHAP.  X.]  CONSTRUCTION   OF   THE   STATUTE.  [§  301. 

reasons  or  rules  of  construction  were  laid  down,  whereby 
conveyances  were  excepted  from  such  operation :  first,  where 
a  use  was  limited  upon  a  use ;  second,  where  a  copyhold  or 
leasehold  estate,  or  personal  property,  was  limited  to  uses  ; 
third,  where  such  powers  or  duties  were  imposed  with  the 
estate  upon  a  donee  to  uses  that  it  was  necessary  that  he 
should  continue  to  hold  the  legal  title  in  order  to  perform 
his  duty  or  execute  the  power.^  In  all  of  these  three  in- 
stances, courts  both  of  law  and  equity  held  that  the  statute 
did  not  execute  the  use,  but  that  such  use  remained,  as  it  was 
before  the  statute,  a  mere  equitable  interest  to  be  adminis- 
tered in  a  court  of  equity.  These  uses,  which  the  statute 
did  not  execute,  were  called  trusts,  and  justify  Mr.  Cruise's 
language  that  "  a  trust  is  a  use  not  executed  by  the  statute 
of  27  Henry  YIII."  The  statute  may  execute  the  use  in  re- 
gard to  one  party  and  not  as  to  another  in  the  same  deed ;  for 
example,  where  land  is  conveyed  to  A.  in  trust  for  B.  for  life, 
contingent  remainder  to  C,  the  statute  may  execute  the  life 
estate  in  B.,  and  still  leave  the  fee  in  A.  for  the  preservation 
of  the  remainder.^ 

§  301.  The  first  two  of  these  rules  originated  in  a  strict 
construction  of  the  technical  words  used  in  the  statute,  which 
are,  "  where  any  person  is  seized  of  any  lands  or  to  the  use 

Goodright  v.  Wells,  2  Doug.  771,  said  that  it  was  not  the  liberality  of 
courts  of  equity,  but  the  absurd  narrowness  of  courts  of  law,  resting  on 
literal  distinctions,  which  in  a  manneh-  repealed  the  statute  of  uses,  and 
drove  cestuis  que  trust  into  equity. 

1  Hill  on  Trustees,  230.  See  §  735,  a;  Farr  v.  Gilreath,  23  S.  C.  511; 
Preachers'  Aid  Society  v.  England,  106  111.  129  (referring  to  the  text). 
Where  an  estate  is  conveyed  to  A.  for  the  use  of  B.,  and  nothing  more  is 
said,  the  title  is  immediately  vested  in  B.  by  the  statute,  even  though  ex- 
press words  of  trust  are  used ;  but  if  certain  duties  are  imposed  on  B., 
such  as  collection  of  rents,  making  investments,  &-c.,  which  require  that 
he  should  keep  the  estate,  the  trust  will  be  an  active  one,  and  the  statute 
will  not  execute  it.  Kellogg  v.  Hale,  108  111.  104;  Howard  v.  Henderson, 
18  S.  C.  189;  Hooberry  v.  Harding,  10  Lea  (Tenn.),  392;  Ileudersou  v. 
Hill,  9  Lea  (Tenn.),  25. 

2  Howard  y.  Henderson,  18  S.  C.  192;  Williman  v.  Holmes,  4  Rich. 
Eq.  (S.  C.)  476. 

403 


§  302.]  ESTATE    OF   THE    TRUSTEE.  [CHAP.  X. 

of  another."  If  A.  grants  lands  to  B.  for  the  use  of  C.  for 
the  use  of  D.,  B.  was  said  to  be  "'  seized "  of  the  lands  to 
the  use  of  C;  and  the  statute  immediately  executed  the  use 
in  C.  and  gave  him  the  legal  title.  But  C.  was  said  not  to 
be  "seized"  of  lands  to  the  use  of  D.,  but  only  of  a  use  ; 
therefore  the  use  in  C.  for  D.  remained,  as  it  was  before  the 
statute,  unexecuted.^  It  remained  therefore  a  mere  equi- 
table estate  or  trust  cognizable  in  a  court  of  equity  alone. 
Hence  the  maxim  that  a  use  could  not  be  limited  on  a  use ; 
not  that  such  second  use  was  void,  but  the  statute  did  not 
execute  it,  and  it  remained  a  mere  equitable  interest.  Thus, 
if  lands  come  to  A.  and  his  heirs  by  feoffment,  grant,  devise, 
or  other  assurance,  to  the  use  of  B.  and  his  heirs,  to  the  use 
of  C.  and  his  heirs ;  or  to  the  use  of  C.  in  fee  or  for  life,  with 
remainders  over ;  or  to  B.  and  his  heirs  in  trust  to  permit  C. 
and  D.  to  receive  the  rents,  —  in  all  these  cases  the  statute 
executes  the  first  use  only  in  B.  and  his  heirs,  and  the  legal 
estate  is  vested  in  him,  as  trustee  for  the  parties  beneficially 
interested.^ 

§  302.  So  where  lands  are  conveyed  by  covenant  to  stand 
seized,  or  by  bargain  and  sale,  or  by  appointment  under  a 
power,  to  A.  and  his  heirs,  to  the  use  of  B.  and  his  heirs,  the 

1  Tyrrell's  Case,  Dyer,  155  a. 

2  Diirant  v.  Ritchie,  4  Mason,  65;  Hurst  v.  McXeil,  1  Wash.  C.  C.  70 
Hutchius  V.  Heywood,  50  X.  II.  49G;  Croxall  v.  Sherard,  5  Wall.  268 
Reed  v.  Gordon,  35  Md.  183  ;  Cueman  v.  Broadnax,  37  N.  J.  Eq    523 
:\Iatthews  v.  Ward,  10  G.  &  J.  llo ;  Whetstone  v.  Bury,  2  P.  Wras.   146 
Wagstaff  v.  Wagstaff,  Id.  258;  Attorney-General  v.  Scott,  Forrest,  138 
Doe  V.  Fassingham,  6  B.  &  Cr.  305;  Jones  v.  Lord  Save  &  Sele,  1  Eq.  Ca. 
Ab.  383;  Marwood  v.  Darell,  Ca.  t.   Hard.  91  ;  Hopkins  v.  Hopkins,  1 
Atk.  581;  Jones  v.  Bush,  4  Harr.  1;  1  Sand.  Uses,  195;  2  Black.  Com. 
336;  Williams  v.  Waters,  14  ]\I.  &  W.  166;  Ramsay  v.  Marsh,  2  McCord, 
252;  Burgess  v.  Wheate,  1  W.  Black.  160;  Wilson  v.  Cheshire,  1  McCord, 
233.     The  statute  of  uses  in  some  of  the  States,  as  Virginia,  speaks  of 
uses  raised  by  deed.     Consequently,  it  is  said  that  uses  raised  by  devise 
are  not  executed,  but  remain  trusts.     Judge  Lomax,  however,  denies  this 
construction.    1  Lomax,  Dig.  188,  196.    In  New  York,  the  uses  named  in 
the  text  would  be  executed  in  the  cestui  que  use  by  the  stal  ute  of  uses  aud 
tiusts,  and  he  would  have  the  entire  legal  title. 

404 


CHAP.  X.]  CONSTRUCTION    OP   THE    STATUTE.  [§  o02. 

legal  estate  will  vest  in  A.,  and  B.  will  take  only  an  equitable 
interest ;  for  these  conveyances  do  not  operate  to  transfer 
the  seizin  to  A.^  They  merely  raise  a  use  which  the  statute 
executes  in  him,  and  stops  there.  Thus,  in  a  deed  of  bargain 
and  sale,  the  operation  is  as  follows :  the  consideration  and 
the  bargain  raise  a  use  in  the  bargainee  which  the  statute 
executes  ;  and  thus,  under  a  deed  of  bargain  and  sale,  the 
bargainee  obtains  both  the  use  and  the  legal  title.  But  no 
use  can  be  limited  and  executed  on  a  use.  Hence,  if  A.  con- 
veys land  to  B.,  to  the  use  of  C.  l)y  a  deed  of  bargain  and 
sale,  the  statute  will  not  execute  the  use  in  C,  but  the  legal 
title  will  remain  in  B.  subject  to  a  trust  for  C,  to  be  admin- 
istered in  equity ;  for  the  consideration  and  bargain  only 
raise  a  use  in  B.,  which  the  statute  executes,  but  the  use  in 
B.  for  C.  is  in  the  nature  of  a  use  limited  upon  a  use,  which 
the  statute  does  not  execute.^ 

1  Johnson  v.  Gary,  16  Johns.  304 ;  1  Cruise,  Dig.  tit.  12,  c.  1,  §  9;  Gilb. 
on  Uses,  67,  347.  Mr.  Blackstone  condemned  this  rule.  2  Black.  Com. 
333.  And  Lord  Mansfield  said  that  the  rule  grew  up  from  the  absurd 
narrowness  of  courts  of  common  law.  Goodright  v.  Wells,  2  Doug.  771. 
And  Mr.  Greenleaf  doubts  if  the  rule  that  a  use  cannot  be  limited  upon  a 
use  would  be  generally  acted  upon  in  the  United  States,  especially  in  those 
States  which  have  declared  by  statute  what  formalities  shall  alone  be 
necessary  to  pass  estates.  Green.  Cruise,  Dig.  tit.  12,  c.  1,  §  4,  n.  (vol.  i. 
p.  380) ;  and  see  Davis  v.  Hayden,  9  Mass.  514;  Flint  v.  Sheldon,  13  JMass. 
443 ;  Marshall  v.  Fisk,  6  Mass.  24. 

2  The  question  has  been  raised  in  Massachusetts  whether  land  can  be 
conveyed  by  deed  of  bargain  and  sale  to  one  for  the  use  of  another,  and 
create  anything  more  than  a  trust  for  the  last  beneficiary.  Stearns  r. 
Palmer,  10  j\Iet.  32;  Norton  v.  Leonard,  12  Pick.  152.  The  general  doc- 
trine .stated  in  the  text  is  fully  admitted,  but  it  is  claimed  in  answer  that 
the  deeds  in  general  use,  although  in  the  general  form  of  deeds  of  bar- 
gain and  sale,  are  in  fact,  by  force  of  the  statutes,  equivalent  to  giants  or 
feoffments,  and  it  is  said  that  if  deeds  will  not  operate  in  the  form  in 
whicii  they  are  drawn,  they  shall  be  construed  to  operate  according  to 
the  intention  of  the  parties.  Higbee  r.  Rice,  o  Mass.  ;5,V2  ;  Pray  o.  Peirce. 
7  Ma.ss.  384  ;  Knox  r.  Jenks,  Id.  494;  Russell  ;;.  Coffin,  8  Pick.  143.  The 
question  was  left  undecided  in  Norton  v.  Leonard  and  Stearns  v.  Palmer, 
ut  supra  .  but  .see  the  remarks  of  Chief-Justice  Dana,  in  Thatcher  v.  Omans, 
3  Pick.  528.  The  same  question  may  arise  in  other  States,  where  their 
deeds  are  in  form  deeds  of  bargain  and  sale. 

405  • 


§  304.]  ESTATE   OF   THE   TRUSTEE.  [CHAP.  X. 

§  303.  Another  technical  construction  of  the  word  "  seized  " 
withdrew  all  uses  or  trusts  created  in  copyhold  or  leasehold 
estates,  and  all  chattel  interests  and  personal  property,  from 
the  operation  of  the  statute.  The  judges  resolved  in  the  22d 
of  Elizabeth  that  the  word  "  seized  "  was  only  applicable  to 
freeholds  ;  consequently  no  one  could  be  said  to  be  "  seized  " 
of  a  leasehold  or  other  chattel  interests  in  real  estate,  or  of 
personal  property.  Therefore,  if  A.  gave  leaseholds  or  per- 
sonal property  to  B.  for  the  use  of  C,  the  statute  did  not 
execute  the  use,  but  B.  took  the  legal  title  in  trust  for  C, 
which  trust  was  not  recognized  at  law,  but  only  in  equity.^ 
So  tenants  by  curtesy  or  in  dower  cannot  stand  seized  to  a 
use,  for  they  are  in  by  act  of  law  in  consideration  of  marriage 
and  not  in  privity  of  estate ;  but  in  equity  they  would  be 
held  to  execute  any  trusts  charged  upon  their  interests  or 
estates.2 

§  304.  From  these  instances,  it  will  be  seen  that,  in  order 
to  create  a  trust,  it  is  necessary  to  prevent  the  legal  estate 
from  vesting  in  the  cestui  que  trust,  and  it  is  necessary  that 
not  only  the  legal  title,  but  the  primary  use,  should  vest  in 
the  trustee.  Any  form  of  conveyancing  that  will  effect  this, 
notwithstanding  the  statute,  will  create  a  trust ;  as  if  a  grant 
or  devise  be  made  to  a  trustee  and  his  heirs,  to  the  use  of  the 
trustee  and  his  heirs,  or  unto  and  to  the  use  of  the  trustee  and 
his  heirs,  the  title  and  the  primary  use  will  both  be  vested  in 
the  trustee ,  and  although  there  is  a  trust  or  use  over  to  some 
other  person,  yet  it  will  not  be  effected  by  the  statute,  it  not 
being  the  primary  use.'^ 

1  Ante,  §  6;  Dyer,  369  a;  Doe  v.  Routledge,  2  Cowp.  709  ;  Sympson  r. 
Turner,  1  Eq.  Ab.  383 ;  2  Wooddes.  Lect.  pp.  295,  297 ;  1  Cruise,  Dig. 
p.  351,  and  tit.  12,  c.  1;  Gilb.  Ten.  182;  Gilb.  Uses,  67  n.;  Kice  v.  Bur- 
nett, 1  Spear,  Eq.  579;  Joor  v.  Hodges,  Spear,  593;  Pyron  v.  'Slood,  2 
IMc^Iullan,  293.  In  some  States,  the  statutes  use  the  word  possessed  in- 
stead of  the  word  seized,  in  which  case  both  real  and  personal  estate  and 
chattel  interests  would  be  transferred  to  the  uses  raised.  Tabb  r.  Baird, 
3  Call,  482.  But  this  construction  is  controverted  by  Judge  Lomax.  1 
Lomax,  Dig.  196. 

2  1  Saunders  on  Uses,  86;  2  Fonbl.  Eq  book  2,  c.  6.  §  1.  and  notes,  p.  140. 
8  Kackham  v.  Siddall,  1  Mac.  &  G.  G07j  Doe  v.  Passinghaui,  6  B.  &  C. 

406 


CHAP.  X.]     A  TRUST  MUST  NOT  BE  EXECUTED  BY  STATUTE.      [§  305. 

§  305.  The  third  rule  of  construction  is  less  technical,  and 
relates  to  special  or  active  trusts,  which  were  never  within 
the  purview  of  the  statute. ^  Therefore  if  any  agency,  duty, 
or  power  be  imposed  on  the  trustee,  as  by  a  limitation  to  a 
trustee  and  his  heirs  to  pay  the  rents,^  or  to  convey  the  estate,-^ 
or  if  any  control  is  to  be  exercised,  or  duty  performed  by  the 
trustee  in  applying  the  rents  to  a  person's  maintenance,*  or 
in  making  repairs,"  or  to  preserve  contingent  remainders,^ 
or  to  raise  a  sum  of  money ,'^  or  to  dispose  of  the  estate  by 

305,  Kobinson  v.  Comyns,  t.  Talb.  15i;  Doe  v.  Field,  6  B.  &  Ad.  o64; 
Attorney-General  v.  Scott,  t.  Talb.  138;  Hopkins  v.  Hopkins,  1  Atk.  589; 
Harris  v.  Pugh,  12  Moore,  577;  4  Bingh.  335;  Prise  v.  Sisson,  2  Beas. 
168;  Eckels  v.  Stewart,  33  Pa.  St.  460;  Freyvogle  v.  Hughes,  56  Pa.  St. 
228;  Dodson  v.  Ball,  60  Pa.  St.  492,  McMullin  v.  Beatty,  56  Pa.  St.  387; 
Keyser's  App.,  57  Pa.  St.  636;  Koenig's  App.,  Id.  352;  Bacon's  App.,  Id. 
504 ;  Goodrich  v.  Milwaukee,  24  Wis.  422. 

^  Chapin  v.  Universalist  Soc,  8  Gray,  580;  Exeter  r.  Odiorne,  1  N.  H. 
232  ;  Mott  o.  Buxton,  7  Tes.  201  ;  Wright  v.  Pearson,  1  Edw.  125;  Wheeler 
V.  Newhall,  7  Mass.  189;  Norton  v.  Leonard,  12  Pick.  152;  Strikers. 
Mott,  2  Paige,  387  ;  Wood  v.  Wood,  5  Paige,  596. 

2  Robinson  t;.  Grey,  9  East,  1;  Jones  v.  Saye  &  Sele,  1  Eq.  Ca.  Ab. 
383;  Barker  t).  Greenwood,  4  M.  &  W.  429;  Sympson  v.  Turner,  1  Eq. 
Ca.  Ab.  383;  Chapman  v.  Blissett,  Ca.  t.  Talb.  145;  Garth  v.  Baldwin,  2 
Ves.  646;  Sherwin  v.  Kenny,  16  Ir.  Ch.  138;  Anthonys.  Rees,  2  Cr.  & 
Jer.  75;  Doe  v.  Hampray,  6  Ad.  &  El.  206;  Whiter.  Barker,  1  Bing. 
N.  C.  573;  Kenrick  v.  Beauclerk,  3  Bos.  &  P.  178;  Neville  v.  Saunders, 
1  Vern.  415.  See  the  elaborate  case,  Leggett  v.  Perkins,  2  Comst.  297, 
Brewster  v.  Striker,  Id.  19;  Morton  v.  Barrett,  22  Me.  261;  McCosker  v. 
Brady,  1  Barb.  Ch,  329;  Doe  v.  Biggs,  2  Taunt.  109;  Wickhara  v.  Berry, 
53  Pa.  St.  70;  Manice  v.  Manice,  43  N.  Y.  203;  Adams  v.  Perry,  Id.  487; 
Hutchins  v.  Hey  wood,  50  N.  H.  500;  Barnett's  App.,  46  Pa.  St.  392; 
Shankland's  App.,  47  Pa.  St.  113;  Ogden's  App.,  70  Pa.  St.  501;  Dei- 
bert's  App.,  78  Pa.  St.  296;  Meecham  v.  Steele,  93  111.  135. 

8  Ibid.;  Doe  v.  Edlin,  4  Ad.  &  El.  582;  Doe  v.  Scott,  4  Bing.  505; 
Mott  V.  Buxton,  7  Ves.  201. 

*  Sylvester  v.  Wilson,  2  T.  R.  444;  Doe  v.  Edlin,  4  Ad.  &  El.  582; 
Vail  V.  Vail,  4  Paige,  317;  Porter  v.  Doby,  2  Rich.  Eq.  52;  Doe  v.  Iron- 
monger, 3  East,  533,  Gerard  Ins.  Co.  v.  Chambers,  46  Pa.  St.  485. 

*  Shapland  v.  Smith,  1  Bro.  Ch.  75;  Brown  v.  Ramsden,  3  Moore,  612; 
Tiernej'  i;.  Moody,  3  Bing.  3. 

^  BLscoe  V.  Perkins,  1  Ves.  &  B.  485;  Barker  v.  Greenwood,  4  M.  &  W. 
431  ;  Vanderheyden  v    Crandall,  2  Denio,  9. 

■^  Wright  D.  Pearson,  1  Eden,  119;  Stanley  v.  Lennanl,  Id.  87. 

407 


§  306.]  ESTATE    OF    THE    TRUSTEE.  [CHAP.  X. 

salc,^  —  in  all  these,  and  in  other  and  like  cases,  the  operation 
of  the  statute  is  excluded,  and  the  trusts  or  uses  remain  mere 
equitable  estates.  So  if  the  trustee  is  to  exercise  any  discre- 
tion in  the  management  of  the  estate,  in  the  investment  of 
the  proceeds  or  the  principal,  or  in  the  application  of  the  in- 
come ;  2  or  if  the  purpose  of  the  trust  is  to  protect  the  estate 
for  a  given  time,  or  until  the  death  of  some  one,  or  until 
division,^  or  until  a  request  for  a  conveyance  is  made.*  So 
if  an  estate  is  given  upon  a  trust  to  sell  or  mortgage  for  the 
payment  of  debts,  legacies,  or  annuities,  or  to  purchase  other 
lands  to  be  settled  to  certain  uses;^  and  this  construction 
will  not  be  affected  by  a  power  given  to  one  of  the  cestuis 
que  trust  to  control  the  sale  of  part  of  the  estate,^  nor  by  the 
fact  that  the  direction  for  the  payment  of  debts  and  legacies, 
out  of  the  proceeds  of  the  sale  of  the  land,  is  only  in  aid  of 
the  personal  property.'^ 

§  306.    If,  however,  the  trust  simply  is  to  permit  and  suffer 

A.  to  occupy  the  estate,  or  to  receive  the  rents,  the  legal 
estate  is  executed  in  A.  by  the  statute.^     And  a  trust  to  hold 

1  Bagshaw  v.  Spencer,  1  Ves.  142;  Wood  v.  Mather,  38  Barb.  473. 

2  Exeter  v.  Odiorne,  1  N.  H.  232,  Ashhurst  v.  Given,  5  W.  &  S.  323 ; 
Vaux  V.  Parke,  7  W.  &  S.  19 ;  Nickell  i'.  Handly,  10  Grat.  336. 

8  Posey  V.  Cook,  1  Hill  (S.  C),  413;  Morton  v.  Barrett,  22  Me.  2G1 ; 
Wood  V.  Mather,  38  Barb.  473;  McCaw  v.  Galbraith,  7  Rich.  L.  74;  Wil- 
liams V.  McConico,  36  Ala.  22;  Nelson  v.  Davis,  35  Ind.  474;  McNish  v. 
Guerard,  4  Strob.  Eq.  66,  was  to  the  contrary  upon  the  facts  of  that  par- 
ticular case. 

<  Walter  v.  Walter,  48  Mo.  140. 

5  Curtis  V.  Price,  12  Ves.  89;  Doe  v.  Ewart,  7  Ad.  &  El.  636,  668; 
Ashhurst  v.  Given,  5  W.  &  S.  323;  Vaux  v.  Parke,  7  W.  &  S.  19;  Keene 
V.  Deardon,  8  East,  248;  Bagshaw  v.  Spencer,  1  Ves.  142;  Chamberlain 
V.  Thompson,  10  Conn.  244;  Sanford  v.  Irby,  3  B.  &  Al.  654;  Creaton  v. 
Creaton,  3  Sm.  &  Gif.  386;  Spence  v.  Spence,  12  C.  B.  (n.  s.)  199;  Smith 
V.  Smith,  11  C.  B.  (n.  s.)  121. 

^  Chapman  v.  Blissett,  Forr.  145;  Naylor  v.  Arnitt,  1  R.  &  M.  501; 
Wykham  v.  Wykham,  18  Ves.  395. 

''  Ibid. ;  Murthwaite  v.  Jenkinson,  2  B.  &  Cr.  2.37. 

8  Right  V.  Smith,  12  East.  455;  Wagstaff  v.  Smith,  9  Ves.  524;  Greg- 
ory V.  Henderson,  4  Taunt.  773;  Warter  v.  Hutchinson,  5  Moore,  143;  1 

B.  &  C.  721 ;  Barker  v.  Greenwood,  4  M.  &  W.  429;  Boughton  v.  Langley, 

408 


CHAP,  X.]      WHEN  A  TRUST  IS  NOT  EXECUTED  BY  STATUTE.     [§  307. 

for  the  use  and  benefit  of,  and  to  apply  the  rents  to,  the 
children  of  A.,  is  executed  in  the  children,  notwithstanding 
the  word  apply  is  used.^  But  where  the  trust  is  "  to  pay 
unto  "  or  to  permit  and  suffer  a  person  to  receive  the  rents, 
using  both  expressions,  the  construction  will  be  governed  by 
the  intention  of  the  donor ;  and  in  this  view  the  position  of 
the  words  in  the  sentence,  and  the  priority  of  the  words, 
and  the  consideration  whether  the  instrument  is  a  deed  or 
will,  will  have  a  material  bearing  upon  the  decision.^  Mr. 
Jarman  and  Mr.  Lewin  suggest  that  the  repugnancy  would 
be  obviated  in  such  a  case  by  construing  the  instrument  to 
give  an  election  or  discretion  to  the  trustees.^ 

§  307.  Although  the  direction  may  be  for  the  trustees  to 
permit  and  suffer  another  person  to  receive  the  rents,  yet  if 
any  duty  is  imposed  upon  the  trustees  expressly  or  by  impli- 
cation, the  legal  estate  will  remain  in  them  unaffected  by  the 
statute.  As  if  the  direction  is  to  permit  A.  to  receive  the 
net*  rents,  or  the  clear ^  rents,  the  trustees  take  the  legal 
estate,  the  words  net  and  clear  implying  that  the  trustees  are 
to  pay  all  charges,  and  pay  over  the  balance.  So  if,  in  ad- 
dition to  a  devise  in  trust  to  preserve  contingent  remainders, 
there  is  a  direction  to  permit  A.  to  receive  the  rents  and 
profits ;  ^  and  so  if  trustees  are  to  pay  certain  life  annuities 
out  of  the  rents,  and  subject  to  those  annuities  to  permit  and 
suffer  certain  persons  to  receive  the  rents  and  profits.'^  So  if 
the  trustees  are  to  exercise  any  control,®  as  if  there  is  a  trust 

1  Eq.  Ca.  Ab.  383;  2  Salk.  679  (overruling  Burchett  v.  Durdant,  2  Vent. 
311);  Doe  v.  Biggs,  2  Taunt.  109;  Ramsay  v.  Marsh,  2  McCord,  252; 
Parks  V.  Parks,  9  Paige,  107  ;  Withara  v.  Brooner,  63  111.  158. 

^  Laurens  v.  Jenney,  1  Spears,  35G. 

2  Doe  V.  Biggs,  2  Taunt.  109;  Pybus  v.  Smith,  3  Bro.  Ch.  340. 

8  1  Jarm.  Pow.  Dev.  222  n. ;  Lewin  on  Trusts,  174  (5th  Lond.  ed.).    • 

*  Barker  v.  Greenwood,  4  M.  &  W.  421;  Keene  v.  Deardon,  8  East,  248; 
Rife  V.  Geyer,  59  Pa.  St.  395. 

6  White  V.  Parker,  1  Bing.  N.  C.  573. 

®  Biscoe  V.  Perkins;  1  Ves.  &  B.  485,  489;  Webster  v.  Cooper,  14  How. 
499 ;  Vanderheyden  u.  Crandall,  2  Denio,  9. 

T  Naylor  v.  Arnitt,  1  11.  &  M.  501. 

8  Exeter  v.  Odiorne,  1  N    II.  232. 

400 


§  308.]  ESTATE    OP    THE   TRUSTEE.  [CHAP.  X. 

to  permit  and  suffer  a  woman  to  receive  the  rents,  and  that 
her  receipts  with  the  approbation  of  one  of  the  trustees  should 
be  good.^ 

§  308.  A  mere  charge  of  debts  and  legacies  on  real  estate 
will  not  vest  the  estate  in  the  trustees,  unless  there  is  some 
direction  to  them  to  raise  the  money  and  pay  them,  or  unless 
there  is  some  other  implication  that  they  are  to  exercise  an 
active  trust  for  the  purpose.^  Nor  does  the  legal  estate  vest 
in  the  trustees  where  the  charge  of  the  debts  and  legacies 
upon  the  real  estate  is  contingent  upon  the  insufficiency  of 
any  other  fund,  for  in  that  case  the  trustees  do  not  take  an 
immediate  vested  interest ;  ^  but  if  the  charge  is  made  in  aid 
of  any  other  fund  without  contingency,  the  trustees  will  take 
immediately  a  legal  estate.*  So  if  the  trustees  are  to  demise 
the  estate  for  a  term,  at  rack-rent  or  otherwise,  the  term 
must  come  out  of  their  interest,  and  the  legal  estate  must  be 
in  them.^  If,  however,  the  instrument  confers  by  construc- 
tion upon  the  trustees  a  mere  power  of  leasing,  a  good  legal 
term  may  be  created  by  the  exercise  of  the  power  and  with- 
out the  legal  estate  in  them.^  So  if  a  testator  give  his  trus- 
tees a  simple  power  of  disposing  of  his  estates,  as  that  his 
executors  or  trustees,  or  other  persons,  shall  sell  or  let  or 
mortgage,  or  otherwise  dispose  of  his  estate,  to  pay  his  debts 
or  legacies  or  annuities,  or  other  charges,  or  where  he  directs 

1  Gregory  v.  Henderson,  4  Taunt.  772;  Barker  v.  Greenwood,  4  M.  & 
W.  430. 

2  Doe  V.  Claridge,  6  Man.  &  Scott,  657;  1  Jarm.  Tow.  Dev.  224  n  ; 
Kenrick  v.  Beauclerk,  3  B  &  P.  178;  Cadogan  v-  Ewart  7  Ad.  &  El.  636, 
668;  Jones  v.  Saye  &  Sele,  8  Vin.  262;  Creaton  v.  Creaton,  3  Sm.  &  Gif. 
386;  Collier  v.  McBean,  34  Beav.  426. 

3  Goodtitle  v.  Knott,  Coop.  43;  Hawker  v.  Hawker,  3  B.  &  Al.  537; 
Gibson  V.  Montfort,  1  Yes.  485. 

4  Mnrthwaite  v.  Jenkinson,  2  B.  &  Cr.  3.57;  Wykham  v  Wykham,  18 
Ves.  395 ;  and  see  Popham  v.  Barafield,  1  Vern.  79. 

6  Doe  V.  Willan,  2  B.  &  Al.  84;  Doe  v.  Walbank,  Id.  554;  Osgood 
V.  Franklin,  2  Johns.  Ch.  20:  Bnrr  v.  Sim,  1  Whart.  266;  Riley  v.  Gar- 
nett,  3  De  G.  &  Sra.  629;  Brewster  v.  Striker,  2  Comst.  19;  Doe  v.  Cafe, 
7  Exch.  675. 

6  Doe  V.  Willan,  2  B.  &  Al.  84 ;  Doe  v.  Simpson,  5  East,  162. 

410 


CHAP.  X.]       WHEN    TRUSTEES    TAKE    THE    LEGAL    TITLE,  [§  309. 

his  executors  to  raise  money,  no  estate  vests  in  the  trustees, 
executors,  or  other  persons,  but  it  descends  to  the  heir  or 
the  person  to  whom  it  is  directed  to  go  in  the  will,  until  it  is 
wanted  for  the  purposes  named,  and  then  it  is  divested  only 
to  the  extent  necessary  for  the  purposes  named.  So  whore 
an  estate  was  to  remain  in  the  hands  of  executors,  for  the 
use  of  the  widow  and  cliildren,  until  the  youngest  child  should 
become  twenty-one  years  old,  the  executors  or  trustees  took 
no  interest  in  the  estate  but  a  simple  power.^  Such  directions 
are  simple  powers  of  disposition,  which  may  be  executed 
without  any  legal  title.^ 

§  309.  Where  a  testator  gave  his  wife  an  annuity,  and  a 
certain  sum  to  his  children  to  be  paid  when  they  arrive  at 
twenty-one  years,  and  appointed  three  persons  by  name,  "  as 
trustees  of  inheritance  for  the  execution  thereof,"  it  was  held 
that  the  trustees  took  tlie  legal  estate.^  And  if  several  trusts 
are  created  in  the  same  instrument,  some  of  which  would  be 
executed  by  the  statute,  and  others  would  require  the  legal 
estate  to  remain  in  the  trustees,  they  will  take  the  legal 
estate  ;  and  this  will  be  the  case,  though  the  trusts  are  limited 
to  arise  successively.*     In  all  cases  where  an  estate  is  given 

1  Burke  v.  Valentine,  52  Barb.  412. 

2  Reeve  v.  Att'y- General,  2  Atk.  22;5;  Hilton  v.  Kenworthey,  3  East,  553; 
Bateman  v.  Bateman,  1  Atk.  421;  Fowler  r.  Jones,  1  Ch.  Ca.  262;  Lancaster 
V.  Thornton,  2  Burr.  1027;  Yates  v.  Compton,  2  P.  Wras.  308;  Fay  v.  Fay, 

1  Cush.  94;  Shelton  v.  Homer,  5  Met.  462;  Bank  of  U.  S.  v.  Beverly,  10 
Peters,  532;  1  How.  134;  Deering  v.  Adams,  37  Me.  264;  Jackson  v. 
Schauber,  7  Cow.  187;  2  Wend.  12;  Burr  v.  Sim,  1  Whart.  266;  Guyer  v. 
Maynard,  6  Gill  &  J.  420;  Dabney  v.  Manning,  3  Ohio,  321 ;  Jameson  v. 
Smith,  4  Bibb,  307;  Hope  v.  Johnson,  2  Yerg.  123;  Bradshaw  v.  Ellis, 

2  Dev.  &  Bat.  Eq.  20.  In  Pennsylvania,  such  powers  conferred  upon  ex- 
ecutors pass  the  estate  by  force  of  a  statute.  Miller  v,  Meetch,  8  Pa.  6t. 
417 ;  Chew  v.  Chew,  28  Pa.  St.  17. 

3  Trent  v.  Harding,  10  Ves.  495;  1  B.  &  P.  N.  C.  116;  7  East,  95; 
Re  Hough,  4  De  G.  &  Sm.  371 ;  Re  Turner,  2  De  G.,  F.  &  J.  527. 

*  Hawkins  v.  Lu.scombe,  2  Swanst.  375,  391  ;  Horton  v.  Horton,  7  T.  R. 
652;  Blagrave  v.  Blagrave,  4  Exch.  570;  Brown  v.  Whiteway,  8  Hare,  156; 
Stockbridge  «.  Stockbridge,  99  Mass.  244.  But  see  Tucker  v.  Johnson,  16 
Sim.  341 ;  Leonard  v.  Diamond,  31  Md.  536. 

411 


§  310.]  ESTATE    OF   THE    TRUSTEE.  [CHAP.  X. 

to  trustees  to  preserve  coutingent  remainders,  the  statute 
does  not  execute  the  estate  in  the  cestui  que  trust ;^  and  in 
every  case  where  the  words  "  to  the  use  of  the  trustees  "  are 
used,  the  statute  does  not  execute  the  estate,  although  it  is 
to  the  use  of  the  trustees  in  trust  for  another ;  for  the  statute 
on!}-  executes  the  first  use.^ 

§  310.  If  an  estate  be  given  to  trustees  upon  a  trust  for  a 
married  woman  "  for  her  sole  and  separate  use,"  and  "  her 
receipts  alone  to  be  sufficient  discharges,"  or  if  the  trust 
be  to  "  permit  and  suffer  a  feme  covert  to  receive  the  rents  to 
her  separate  use,"  the  legal  estate  will  vest  in  the  trustees, 
and  the  statute  will  not  execute  it  in  the  cestui  que  trust.^ 
In  all  these  cases  the  court  will  give  this  construction  to  the 
gift,  if  possible  ;  *  for  if  the  statute  should  execute  the  estate 
in  the  married  woman,  certain  rights  would  arise  to  the  hus- 
band which  might  defeat  the  intention  of  the  donor.^  These 
are  not  the  ouly  words  that  will  prevent  the  estate  from 
vesting.  Any  words  that  show  an  intent  to  create  an  estate 
or  a  trust,  for  the  sole  and  separate  use  of  a  married  woman, 
will  have  the  same  effect.^  And  a  woman  in  contemplation  of 
marriage  may  deed  lands  to  another  to  stand  seized  to  the  sole 
use  of  the  grantor,  and  the  statute  will  not  affect  the  trans- 

1  Laurens  v.  Jeniiey,  1  Spears,  365;  Co   Litt.  265  a,  n.  2;  337  a,  n.  2. 

2  Ante  §  304;  Keene  v.  Deardon,  8  East,  248  ;  Whetstone  v.  St.  Bury, 
2  P.  Wms.  146  ;  Pr.  Ch.  591;  Synipson  v.  Turner,  1  Eq.  Ca.  Ab.  383;  Hop- 
kins V.  Hopkins,  1  Atk.  586;  Hawkins  v.  Luscombe,  3  Swanst.  376,  388. 

8  Horton  v.  Hovton,  7  T.  R.  652;  Xeville  v.  Saunders,  1  Vern.  415; 
Jones  V.  Saye  &  Sele,  1  Eq.  Ca.  Ab.  383;  Doe  v.  Claridge,  6  C.  B.  641; 
Hawkins  v.  Luscombe,  2  Swanst.  391 ;  South  v.  Alleyne,  5  Mod.  63,  101 ; 
Bush  V.  Allen,  Id.  63;  Robinson  v.  Grey,  9  East,  1;  Ayer  i".  Ayer,  16 
Pick.  330 ;  Williman  v.  Holmes,  4  Rich.  Eq.  475 ;  McNish  v.  Guerard,  4 
Strob.  Eq.  475;  Franciscus  v.  Reigart,  4  Watts,  109;  Escheator  r.  Smith,  4 
McCord,  452  ;  Bass  v.  Scott,  2  Leigh,  356 ;  Rogers  v.  Ludlow,  3  Sandf.  Ch. 
104;  Richardson  v.  Stodder,  100  Mass.  528. 

*  Ware  v.  Richardson,  3  Md.  505 ;  Moore  v.  Shultz,  13  Pa.  St.  98. 

^  Ibid.  ;  Rice  y.  Burnett,  1  Spear,  Eq.  580. 

«  Ayer  v.  Ayer,  16  Pick.  331;  Kirk  v.  Paulin,  7  Vin.  Ab.  95;  Tyrrel  v. 
Hope,  2  Atk.  558;  Darley  v.  Darley,  3  Atk.  399 ;  Hartley  v.  Hurle,  5  Yes. 
540. 

412 


CHAP.  X.]       WHEN    TRUSTEES    TAKE    THE    LEGAL   TITLE.       [§  310  a. 

action,  but  a  trust  will  be  created,  as  otherwise  the  intent  of 
the  parties  would  be  defeated.^  But  it  is  said  that  if  an  estate 
is  "  released  by  deed  "  to  A.  and  his  heirs  "  upon  a  trust "  for 
"  the  sole  and  separate  use  of  the  releasor,"  and  no  active 
duty  is  imposed  upon  the  trustee  in  respect  to  the  sole  and 
separate  estate,  a  common-law  court  will  reject  the  sole  and 
separate  use  as  an  estate  unknown  to  the  law  ;  and  it  has 
been  held  in  such  case  that  the  statute  vested  the  estate  in 
the  cestui  que  trust? 

§  310  a.  But  in  order  that  an  estate  given  to  the  sole  and 
separate  use  of  a  woman  may  vest  and  remain  in  the  trustees, 
it  is  necessary  that  she  should  be  married  or  in  immediate 
contemplation  of  marriage.  For  if  she  is  unmarried,  or  the 
estate  is  not  given  in  the  immediate  contemplation  of  her 
marriage,  it  will  vest  in  her  at  once  by  the  statute  of  uses  ; 
or  she  will  have  the  right  to  call  for  the  execution  of  the 
trust  at  once,  by  a  conveyance  of  the  legal  estate  to  her  by 
the  trustee,  unless  there  are  some  other  provisions  in  the  will 
or  purposes  of  the  trust  which  render  it  an  active  trust,  and 
the  continuance  of  the  legal  estate  in  the  trustees  necessary 
for  its  purposes.^  It  is  not  necessary  that  the  contemplation 
of  her  immediate  marriage  should  appear  upon  the  face  of 
the  will  or  settlement,  if  in  fact  an  immediate  marriage  was 
contemplated,  and  such  fact  was  probably  known  to  the 
testator  or  settlor.*  In  such  cases  the  trust  will  continue 
during  the  coverture  of  the  woman,  and  at  the  decease  of  her 
husband  she  will  have  the  right  to  call  for  a  conveyance  of 

1  Pittsfield  Savings  Bank  v.  Berry,  6-3  N.  H    109. 

2  Nash  V.  Allen,  1  Hurl.  &  Colt.  107;  Williams  v.  Waters,  14  M.  &  W. 
166  (see  remarks  on  this  case  in  Ware  v.  Richardson,  3  Md.  505) ;  Roberts 
V.  Moseley,  51  Mo.  282;  Westcott  u.  Edmunds,  68  Pa.  St.  34;  Edmund's 
A  pp..  Id.  24. 

8  Lancaster  i-.  Dolan,  1  Rawle,  231;  Smith  xu  Starr,  3  Wharton,  63; 
Ilammersley  i'.  Smith,  4  Wharton,  129;  McBride  o.  Smyth,  54  Pa.  St.  250; 
YarnaH's  App.,  70  Pa.  St.  339;  Ogden's  App.,  Id.  501;  29  Le^al  Int. 
(May,  1872)  165  ;  Wells  v.  McCall,  64  Pa.  St.  207;  Springer  v.  Arundel, 
Id.  218;  7  Phila.  R.  224;  Credlant's  Est.,  Id.  58. 

*  Wells  V.  McCall,  61  Pa.  St.  207  ;  Springer  v.  Arundel,  Id.  218. 

413 


§  312.]  ESTATE   OP   THE   TRUSTEE.  [CHAP.  X. 

the  property  as  upon  a  termination  of  the  trust.^  A  con- 
veyance "  in  trust  for  B.,wife  of  C,  and  her  heirs  and  assigns 
forever,"  creates  a  trust  during  B.'s  coverture  and  a  legal  es- 
tate afterwards.  If  C.  dies,  the  legal  estate  is  in  B.  and  her 
heirs,  though  B.  subsequently  marries  again.^ 

§  311.  As  stated,  chattel  interests  in  land  and  personal 
property  were  never  within  the  statute  of  uses,  and  the  legal 
title  to  them  will  remain  in  the  trustee,  until  the  purposes 
of  the  trust  are  accomplished,  and  until  the  possession  of  the 
property  is  in  some  way  transferred  to  the  person  entitled  to 
the  use,  or  the  last  use.^  But  where  the  trust  is  at  an  end, 
the  title  is  in  the  person  entitled  to  the  last  use;*  and  a 
mere  delivery,  without  other  formality,  gives  such  person 
full  and  absolute  control  of  the  property.^  Until  such  de- 
livery the  law  cannot  recognize  any  equitable  interests  in 
the  property.^  If  the  cestui  que  trust  is  an  infant,  it  is  said 
that  the  trust  will  not  be  executed  by  delivering  the  prop- 
erty to  him,  because  he  is  incapable  of  assenting  to  such 
transferJ 

§  312.  In  all  cases  where  an  estate  is  given  to  one  for 
the  use  of  another,  in  such  manner  that  the  statute  of  uses 
steps  in  and  executes  the  estate  in  the  cestui  que  trusty  the 
statute  executes  in  the  cestui  que  trust  only  the  estate  that 

1  Megargee  v.  Naglee,  64  Pa.  St.  211;  Yarnall's  App.  70  Pa.  St.  339; 
Freyvogle  v.  Hughes,  56  Pa.  St  230. 

2  Moore  v.  Stinson,  144  Mass.  594. 

3  Ante,  §  303;  Harley  v.  Platts,  6  Rich.  L.  315  ;  Rice  v  Burnett,  1 
Spear,  Eq.  590;  Schley  v.  Lyon,  6  Ga.  530,  Doe  v  Nichols,  1  B.  &  Cr. 
336 ;  Slevin  v.  Brown,  3  Mo.  176 

4  Westcott  V.  Edmunds,  68  Pa.  St.  34;  Bacon's  App.,  57  Pa.  St.  500, 
Dodson  V.  Ball,  60  Pa.  St.  492  ;  Barnett's  App.,  10  Wright,  392,  Rife  v 
Geyes,  59  Pa.  St.  395;  Freyvogle  v.  Hughes,  56  Pa.  St.  228;  Deibert's 
App.  No.  1,  83  Pa.  St.  462;   Schaffer  v.  Lauretta,  57  Ala.  14. 

5  Ibid. ;  Bringhurst  v.  Cuthburt,  6  Binn.  398,  Lawrie  v.  Bankes,  4  K. 
&  J.  142. 

^  Ibid. ;  lorr  v.  Hodges,  1  Spear,  Eq.  593. 

■^  Harley  v.  Platts.  6  Rich.  L.  315.     But  see  Lawrie  v.  Bankes.  4  K.  & 
J.  142;  White  v.  Baylor,  10  Ir.  Eq.  53;  Bulstrode,  184. 
114 


CHAP.  X.]     WHETHER   TRUSTEES    TAKE    AN    liNHERITANCE.       [§  312. 

the  first  donee  or  trustee  takes  ;  that  is,  the  statute  executes 
or  transfers  the  exact  estate  given  to  the  trustee.  Therefore, 
if  A.  give  an  estate  to  B.  and  his  heirs  for  the  use  of  C.  and 
his  heirs,  the  statute  will  execute  the  fee-simple  in  C.  But 
if  A.  gives  an  estate  to  B.  for  the  use  of  C.  and  his  heirs,  the 
statute  will  execute  only  an  estate  for  the  life  of  A.  in  C. ; 
for  that  is  the  extent  of  the  estate  conveyed  to  B.  by  a  deed 
in  that  form ;  that  is,  by  a  deed  that  has  no  words  of  inheri- 
tance in  B.i  While  this  is  the  rule  in  respect  to  estates 
which  the  statute  executes,  a  very  different  rule  applies  to 
estates  upon  a  trust  or  use  not  executed  by  the  statute.  In 
these  cases,  the  extent  or  quantity  of  the  estate  taken  by  the 
trustee  is  determined,  not  by  the  circumstance  that  words  of 
inheritance  in  the  trustee  are  or  are  not  used  in  the  deed  or 
will,  but  by  the  intent  of  the  parties.  And  the  intent  of  the 
parties  is  determined  by  the  scope  and  extent  of  the  trust. 
Therefore,  the  extent  of  the  legal  interest  of  a  trustee  in  an 
estate  given  to  him  in  trust  is  measured,  not  by  words  of 
inheritance  or  otherwise,  but  by  the  object  and  extent  of  the 
trust  upon  which  the  estate  is  given.^     On  this  principle,  two 

1  Newhall  v.  Wheeler,  7  Mass.  189 ;  Cio.  Car.  231 ;  Nelson  v.  Davis, 
35  Jnd.  474;  Baptist  Soc.  v.  Hazen,  100  Mass.  322;  Idle  v.  Cooke,  1  P. 
Wms.  77;  Doe  v.  Smeddle,  2  B.  &  A.  126  .  Chambers  v.  Taylor,  2  M.  & 
Cr.  376;  Vanhorn  v.  Harrison,  1  Dall.  137;  Jackson  v.  Fish,  10  Johns. 
456.  Where  a  gift  is  made  by  deed  to  individuals  and  their  "  successors," 
without  the  word  "heirs,"  in  trust  for  or  to  the  use  of  a  corporation  or 
religious  society,  an  inheritance  or  succession  is  not  created,  and  if  the 
statute  of  uses  applies  to  the  conveyance,  only  a  life-estate  is  executed  in 
the  corporation  or  religious  society.  Henderson  v.  Hunter,  59  Pa.  St. 
325;  First  Bap.  Soc.  in  Andover  v.  Hazen,  100  Mass.  322. 

2  Cleveland  v.  Hallett,  6  Cush.  407;  Gibson  v.  Montfort,  1  Ves.  485: 
Newhall  r.  Wheeler,  7  Mass.  189,  198;  Gates  v.  Cooke,  3  Burr.  1684; 
Stearns  v.  Palmer,  10  Met.  32,  Sears  v.  Russell,  8  Gray,  86;  Gould  v. 
Lamb,  11  Met.  84;  Brooks  v.  Jones,  Id.  191;  Fisher  v.  Fields,  10  Johns. 
495;  Doe  v.  Field,  2  B.  &  Ad.  564;  Trent  v.  Hanning,  7  East,  99;  Doer. 
Willan,  2  B.  &  A.  84;  8  Vin.  Ab.  262,  pi.  18;  Shaw  «.  Wright,  1  Eq.  Ca. 
Ah.  176,  pi.  8;  Brewster  v.  Striker,  1  E.  1).  Smith,  321;  Richardson  r. 
Stodder,  100  Mass.  528;  Fox  v.  Storrs,  75  Ala.  267;  Gosson  v.  Ladd,  77 
Ala.  224;  West  v.  Fitz,  109  111.  425;  Jourolmon  v.  Massengill,  86  Tenn. 
82.  See  Henderson  v.  Ilill,  9  Lea  (Tenn.),  25;  Young  v.  Bradley,  101 
U,  S.  782. 

415 


§  313.]  ESTATE    OF   THE    TRUSTEE.  [CHAP,  X. 

rules  of  construction  have  been  adopted  by  courts :  first, 
"  Wherever  a  trust  is  created,  a  legal  estate,  sufficient  for 
the  purposes  of  the  trust,  shall,  if  possible,  be  implied  in 
the  trustee,  whatever  may  be  the  limitation  in  the  instru- 
ment, whether  to  him  and  his  heirs  or  not."  ^  And  sec- 
ond, "  Although  a  legal  estate  may  be  limited  to  a  trustee  to 
the  fullest  extent,  as  to  him  and  his  heirs,  yet  it  shall  not 
be  carried  farther  than  the  complete  execution  of  the  trust 
necessarily  requires."  ^ 

§  313.  Thus  courts  have  by  construction  implied  an  estate 
in  the  trustees,  although  no  estate  was  given  them  in  words ; 
but,  in  all  such  cases,  the  trustees  were  required  to  do  some- 
thing that  required  a  legal  estate  of  some  kind  in  them ;  as, 

-  iSTeilson  v.  Lagow,  12  How.  98 ;  Sears  v.  Russell,  8  Gray,  86 :  Cham- 
berlain V.  Thompson,  10  Conn.  214;  Cleveland  v.  Hallett,  6  Cush.  407; 
Payne  v.  Sale,  2  Dev.  &  Bat.  Eq.  460;  Nichol  v.  Walworth,  4  Denio,  385; 
Upham  V.  Varney,  15  N.  H.  462,  King  v.  Parker,  9  Cush.  71;  AVilliams 
V.  First  Soc.  in  Cin.,  1  Ohio  St.  478;  Hawley  v.  James,  5  Paige,  318; 
Deering  v.  Adams,  37  Me.  265;  Webster  v.  Cooper,  14  How.  499;  Com- 
bry  V.  McMichael,  19  Ala.  751;  Gill  v.  Logan,  11  B.  Mon.  233;  Powell  v. 
Glen,  21  Ala.  468;  King  v.  Akerman,  2  Black,  408;  Ward  v.  Amory,  1 
Curtis,  C.  C.  427;  White  v.  Baylor,  10  Jr.  Eq.  54;  Meeting  St.  Bap.  Soc. 
V.  Hail,  8  R.  I.  240;  Nelson  v.  Davis,  35  Tnd.  474;  Kirkland  v.  Cox,  94 
111.  400;  Preachers'  Aid  Society  v.  England,  106  111.  128. 

2  Norton  v.  Norton,  2  Sandf.  296;  Williman  v.  Holmes,  4  Rich.  Eq. 
475;  Watson  v.  Pearson,  2  Exch.  593  ;  Blagrave  v.  Blagrave,  4  Exch.  569; 
Brown  v.  Whiteway,  8  Hare,  156;  Saye  &  Sele  v.  Jones,  1  Eq  Ca.  Ab. 
383;  3  Bro.  P.  C.  113;  Shapland  v.  Smith,  1  Bro.  Ch.  75;  Ileardson  v. 
Williamson,  1  Keen,  33-,  Player  v.  Nicholls,  1  B.  &  Cr.  142;  Warter  v. 
Hutchinson,  5  Moore,  153;  1  B.  &  Cr.  721;  Chapman  v.  Blissett,  Forr. 
145;  Doe  v.  Hicks,  7  T.  R.  433;  Nash  v.  Coates,  3  B.  &  A.  839;  Ex 
parte  Gadsden,  3  Rich.  468;  Adams  v.  Adams,  6  Q.  B.  866;  Barker  v. 
Greenwood,  4  M.  &  W.  429  ;  Doe  v.  Claridge,  6  C.  B.  641 ;  Ware  i'.  Rich- 
ardson, 3  Md.  505;  Pearce  v.  McCIenaghan,  5  Rich.  178;  Ellis  v.  Fisher, 
3  Sneed,  231;  Gardenhire  v.  Hinds,  1  Head,  402,  Smith  v.  Metcalf,  Id. 
64;  Slevin  v.  Brown,  32  Mo.  176;  Greenwood  v.  Coleman,  34  Ala.  150; 
Brj'an  v.  Weems,  29  Ala.  423;  Koenig's  App.,  57  Pa.  St.  552,  Ivory  r. 
Burns,  56  Pa.  St.  300 ;  Wilcox  v.  Wilcox,  47  N.  H.  488  ;  McBride  v. 
Smyth,  59  Pa.  St.  245;  West  v.  Fitz,  109  111.  425;  Farmers'  Nafl  Bank 
V.  Moran,  30  Minn.  167;  Davis  v.  Williams,  85  Tenn.  646.  But  see 
Watkins  v.  Specht,  7  Cold.  585;  McElroy  v.  McElroy,  113  Mas.s.  509. 

416 


CHAP.  X.]     WHETHER    TRUSTEES    TAKE    AN    INHERITANCE.       [§  315. 

where  a  testator  gave  to  a  married  woman  tlie  rents  and 
profits  of  certain  lands  to  be  paid  her  by  his  executors,  it 
was"  held  to  be  a  devise  of  the  land  itself  to  the  executors, 
although  nothing  was  given  them  in  terms,  to  enable  them 
to  carry  out  the  purposes  of  the  trust.^  So  a  power  given 
to  executors  to  rent,  lease,  repair,  and  insure,  implies  a  legal 
title  in  them.^ 

§  314.  In  the  same  manner,  and  for  the  same  reasons, 
courts  have  enlarged  or  extended  estates  given  to  trustees. 
Thus,  if  A.  gives  an  estate  to  B.  without  words  of  limitation, 
it  is  an  estate  for  the  life  of  A. ;  but  if  A.  gives  an  estate  to  B. 
to  pay  certain  annuities  to  persons  named,  for  their  lives,  the 
trustee  takes  an  estate  for  the  lives  of  the  several  annuitants.^ 

§  315.  So,  if  land  is  devised  to  trustees  without  the  word 
heirs,  and  a  trust  is  declared  which  cannot  be  fully  executed 
but  by  the  trustees  taking  an  inheritance,  the  court  will  en- 
large or  extend  their  estate  into  a  fee-simple,  to  enable  them 
to  carry  out  the  intention  of  the  donor.*  Thus,  if  land  is 
conveyed  to  trustees,  without  the  word  heirs,  in  trust  to  sell, 
they  must  have  the  fee,  otherwise  they  could  not  sell.^     The 

1  Gates  V.  Cooke,  3  Burr.  1684;  W.  Black.  543;  Bush  v.  Allen,  .5  Mod. 
63 ;  Doe  v.  Woodhouse,  4  T.  R.  89 ;  Doe  v.  Homfray,  6  Ad.  &  El.  206 ; 
Doe  V.  Sampson,  .5  East,  162;  Feedey's  App.,  60  Pa.  St.  349. 

2  Kellam  v.  Allen,  52  Barb.  605. 

8  Jenkins  v.  Jenkins,  Willes,  656;  Shaw  v.  Weigh,  2  Str.  798;  Gates 
V.  Cooke,  3  Burr.  1684,  and  other  cases  cited,  §  313,  n.  2. 

*  Villiers  v.  Villiers,  2  Atk.  72;  Cleveland  v.  Hallett,  6  Cush.  407; 
Fisher  v.  Fields,  10  Johns.  505;  Ellis  v.  Fisher,  3  Sneed,  231;  Rackham 
V.  Siddall,  1  Mac.  &  G.  607;  2  Hall  &  T.  44;  Deering  v.  Adams,  37  Me. 
265;  Brown  v.  Brown,  12  Md.  87;  Webster  v.  Cooper,  14  How.  499; 
Blagrave  v.  Blagrave,  4  Exch.  569;  Hawkins  v.  Chapman,  36  Md.  94; 
Farquharson  v.  Eichelberger,  15  Md.  72  ;  Packard  v.  Marshall,  138  Mass. 
302. 

&  Gibson  v.  Montford,  1  Ves.  491;  Amb.  95;  Shaw  v.  Weigh,  1  Eq. 
Ca.  Ab.  184;  Bagshaw  v.  Spencer,  1  Ves.  144;  Glover  v.  Monckton,  3 
P>ing.  113;  10  Moore.  453;  Hawker  v.  Hawker,  3  B  &  A.  5>7;  Warter 
V.  Hutchinson,  5  Moore,  143;  1  B.  &  C.  121;  Watson  v.  Pearson,  2  Exch. 
594;  Chamberlain  v.  Thompson,  10  Conn.  244:  Doe  r.  Howland,  7  Cow. 
277;  Jackson  v.  Robins,  16  Johns.  537;  Spessard  v.  Rohrer,  9  Gill,  262. 
VOL.  I  — 27  417 


§  31G.]  ESTATE    OF    THE    TRUSTEE.  [CHAP.  X. 

construction  would  be  the  same  if  the  trust  was  to  sell  the 
whole  or  a  part ;  for  no  purchasers  would  be  safe  unless 
they  could  have  the  fee  ;  ^  and  a  trust  to  convey  or  to  lease 
at  discretion  would  be  subject  to  the  same  rule.^  A  fortiori^ 
if  an  estate  is  limited  to  trustees  and  their  heirs  in  trust  to 
sell  or  mortgage  or  to  lease  at  their  discretion,  or  if  they  are 
to  convey  the  property  in  fee,  or  divide  it  equally  among 
certain  persons ;  for  to  do  any  or  all  these  acts  requires  a 
legal  fee.^ 

§  316.  Where  an  estate  is  given  to  trustees  in  fee  upon 
trusts  that  do  not  exhaust  the  whole  estate,  and  a  power  is 
superadded  which  can  only  be  exercised  by  the  trustees  con- 
veying in  fee-simple,  the  trustees  will  take  the  fee,  and  the 
estate  conveyed  by  them  will  be  sustained  by  the  fee  in 
them,  and  not  by  the  mere  power.*  Where  it  is  possible 
that  the  trustees  may  be  under  the  necessity  of  exercising  a 
power  over  the  fee,  as  by  mortgage,  a  gift  to  them  of  the  fee 
will  not  be  cut  down;^  and  the  rule  is  that  all  the  trusts 
which  trustees  must  execute  are  to  be  executed  out  of  the 
estate  given  thcra.^     Lord  Talbot  said  that  it  was  wholly  a 

1  Bagshaw  v.  Spencer,  1  Ves.  144;  Kirkland  v.  Cox,  94  111.  402. 

2  Booth  V.  Field,  2  B  &  Ad.  556;  Keen  v.  Walbank,  Id.  554;  Brewster 
V.  Striker,  2  Comst.  19,  Deering  v.  Adams,  37  Me.  265.  But  see  Doe  v. 
Cafe,  7  Exch.  675. 

3  Bagshaw  v.  Spencer,  1  Ves.  142;  Keane  i\  Deardon,  8  East,  242; 
Cadogan  t'.  Ewart,  7  Ad.  &  El.  636;  Tompkins  v.  Willan,  2  B.  &  A.  84; 
Keen  v.  Walbank,  Id.  354;  Garth  v  Baldwin,  2  Ves.  646;  Booth  v.  Field, 
2  B.  &  Ad.  564;  Rees  v.  Williams,  2  M.  &  W.  749;  Shelly  v.  Eldin,  4  Ad. 
&  El.  582 ;  Creaton  v.  Creaton,  2  Sm.  &  Gif.  386 ;  Collier  r.  Walters,  L.  R. 
17  Eq.  265 

*  Fenwick  v.  Potts,  8  De  G.,  M.  &  G.  506;  Poad  v.  Watson,  37  Eng.  L. 
&Eq.  112;  Watkins  v.  Frederick,  11  H.  L.  Cas.  354;  Iladdelsey  i>.  Adams, 
22  Beav.  266.  A  power  of  appointment  superadded  to  a  life-estate  will 
not  enlarge  it  into  a  fee ;  and  so  a  power  of  appointment  added  to  an  estate 
of  inheritance  will  not  cut  down  the  fee.  Yarnell's  App.,  70  Pa.  St.  342; 
Burleigh  i;.  Clough,  52  N.  H.  267. 

6  Fenwick  v.  Potts,  8  De  G.,  M.  &  G.  506;  Horton  v.  Horton,  7  T.  R. 
652;  Brown  v.  Whiteway,  8  Hare,  156. 

^  Watson  V.  Pearson,  2  Exch.  593. 

418 


CHAP.  X.]     WHETHER   TRUSTEES    TAKE    AN    INHERITANCE.       [§  317. 

matter  of  intention  whether  the  trustee  should  take  a  fee  or 
not ;  ^  hence,  in  other  cases,  it  has  been  said  that  if  no  inten- 
tion appeared  upon  the  face  of  the  will  that  the  trustees 
were  to  take  anything  beyond  what  was  necessary  for  the 
execution  of  the  trust,  the  estate,  though  limited  to  them 
and  their  heirs,  would  be  cut  down  to  the  limit  of  the 
trust.2  So  trustees  may  take  only  a  chattel  interest  in  real 
estate,  although  limited  to  them  and  their  heirs,  as  where 
they  are  to  hold  it  in  trust  only  for  a  short  time  to  pay  debts 
and  legacies,  and  convey  it  to  the  cestui  que  trust  when  he 
comes  of  age  or  at  a  certain  time ;  ^  and  this  construction 
will  be  much  stronger  if  the  fee  is  not  limited  to  them.* 
The  same  construction  as  to  the  estate  of  trustees  will  pre- 
vail where  the  limitation  is  to  them  and  their  heirs,  to  their 
use  and  behoof  forever,  whether  it  is  contained  in  a  deed  or 
will.^  Where  a  gift  was  made  to  one  in  trust  for  his  wife  for 
life,  and  to  her  heirs  forever,  subject  to  her  husband's  cur- 
tesy, the  trustee  took  an  estate  for  the  life  of  his  wife  only, 
and  at  her  death  the  trust  ceased.^ 

§  317.  Where  a  testator  gave  all  his  real  and  personal 
estate  to  trustees,  "  their  executors,  administrators,  and  as- 

^  Chapman  v.  BHssett,  Forr.  Ca.  t.  Talb.  145;  Hawkins  v.  Luscombe, 
2  Swanst.  375;  Curtis  v.  Price,  12  Ves.  89;  Collier  v.  McBean,  L.  R.  1 
Ch.  80. 

2  Doe  V.  Hicks,  7  T.  R.  433;  Nash  v.  Coates,  3  B.  &  A.  839;  Boteler 
V.  Allington,  1  Bro.  Ch.  72,  is  criticised  in  7  T.  R.  433,  by  Lord  Kenyon; 
Webster  i'.  Cooper,  14  How.  499;  Beaumont  v.  Salisbury,  19  Beav.  198. 

8  Goodtitle  v.  Whitby,  1  Burr.  228;  Warter  v.  Hutchinson,  1  B.  &  Cr. 
721;  Stanleys.  Stanley,  16  Ves.  491;  Badder  v.  Harris,  2  Dowl.  &  Ry. 
76;  Wheedon  v.  Lea.  3  T.  R.  41 ;  Pratt  v.  Timins,  1  B.  &  Aid.  530;  Brune 
r.  Martin,  8  B.  &  Cr.  497 ;  Tucker  v.  Johnson,  16  Sim.  341 ;  Glover  c. 
Monckton,  3  Bing.  13 ;  Doe  v.  Davies,  1  Q.  B.  430 ;  Player  v.  NichoUs,  1 
B.  &  Cr.  336;  Cadogan  v.  Ewart,  7  Ad.  &  E.  136,  667. 

*  Pearce  v.  Savage,  45  Me.  90 ;  Boraston's  Case,  3  Co.  19 ;  Player  i;. 
Nicholls,  1  B.  &  Cr.  336. 

*  Hawkins  v.  Luscombe,  2  Swanst.  375;  Curtis  v.  Price,  12  Ves.  89; 
Venables  v.  Morris,  7  T.  R.  342 ;  Watkins  v.  Specht,  7  Cold.  585.  But 
see  Cooper  v.  Kynock,  L.  R.  8  Ch.  402. 

^  Noble  0.  Andrews,  37  Conn.  346. 

419 


§  318.]  ESTATE   OP    THE   TRUSTEE.  [CHAP.  X. 

signs,"  in  trust  to  pay  several  annuities,  sums,  and  legacies, 
on  the  deficiency  of  the  personal  estates  out  of  the  rents, 
issues,  and  profits  arising  from  the  real  estate,  and  gave  the 
residue  over,  Lord  Hardwicke  held  that  if  the  annual  recep- 
tion of  the  rents  and  profits  would  satisfy  the  purposes  of 
the  trust,  the  trustees  would  take  only  a  chattel  interest  in 
the  real  estate ;  but,  as  the  land  must  be  sold  for  the  pay- 
ment of  the  legacies,  the  trustees  took  the  fee.^  The  court, 
however,  is  always  reluctant  to  enlarge  an  estate  in  trustees 
beyond  the  terms  of  the  gift ;  and  it  will  not  be  done  unless 
it  is  necessary  for  the  execution  of  the  trust.^  Where  it 
is  plain  that  the  trustees  are  to  pay  all  charges,  debts,  lega- 
cies, annuities,  or  other  moneys  out  of  the  rents  and  profits 
of  the  estate,  and  no  anticipation  of  the  income  is  necessary 
or  contemplated  for  that  purpose,  they  will  take  a  chattel 
interest,  or  a  term  for  years  necessary  for  the  purpose,  and 
not  the  legal  inheritance ;  ^  and  if  the  testator  use  an  inarti- 
ficial word,  as  that  the  trustees  are  to  lend  the  estate,  they 
will  not  take  a  fee.*  A  trust  to  preserve  contingent  remain- 
ders, without  limitation  to  heirs,  will  not  be  enlarged  ;  for 
the  trust  does  not  require  an  estate  of  inheritance.^ 

§  318.  If,  however,  the  subject-matter  of  the  gift  to  trus- 
tees is  personal  estate,  the  whole  legal  interest  will  vest  in 
them  without  words  of  limitation.  They  may  generally  dis- 
pose of  personal  estate  absolutely,  being  compelled  to  account 
for  it.^ 

1  Gibson  v.  IMontfort,  1  Ves.  485;  Amb.  93;  Woodgate  v.  Flint,  44 
N.  Y.  21  n. 

2  Heardson  v.  Williamson,  1  Keen,  33;  White  v.  Simpson,  5  East.  162; 
Wykham  v.  Wykhara,  3  Taunt.  316;  11  East,  458;  18  Ves.  395,  416;  Ack- 
land  V.  Lutley,  9  Ad.  &  El.  879;  Doe  v.  Claridge,  6  C.  B.  641. 

3  Cordall's  Case,  Cro.  Eliz.  315  ;  Carter  r.  Bernadiston,  1  P.  Wms.  589; 
Hitchens  v.  Kitchens,  2  Vern.  404;  Wykham  r.  Wykhara,  18  Ves.  416; 
Heardson  v.  Williamson,  1  Keen,  33;  Co.  Litt.  42  a. 

*  Payne  v.  Sale,  2  Dev.  &  Bat.  Eq.  455. 

5  Thong  V.  Bedford,  1  Bro.  Ch.  14;  Webster  v.  Cooper,  14  How.  499; 
Beaumont  v.  Salisbury,  19  Beav.  198;  Co.  Litt.  290  b;  Ball.  n.  viii. 

«  Dinsmore  v.  Biggert,  9  Barr,  135;  Nicoll  v.  Walworth.  4  Denio,  385; 
Chamberlain  v.  Thompson,  10  Conn.  244;  Combry  v.  McMichael,  19  Ala. 
420 


CHAP.  X.]     WHETHER   TRUSTEES    TAKE    AN    INHERITANCE.       [§  319. 

§  319.  In  England,  a  distinction  is  kept  up  between  limita- 
tions to  trustees  in  wills  and  deeds.  Thus  it  is  said  that  in 
wills  there  is  more  room  for  construction  to  ascertain  and 
carry  into  effect  the  intention  of  testators,  and  that  in  deeds 
the  rules  of  property  are  carried  into  effect  with  more  strict- 
ness. So  it  is  said,  that  if  in  a  deed  an  estate  is  given  to  a 
trustee  and  his  heirs,  there  is  no  power  to  abridge  the  estate 
on  the  ground  that  the  purposes  of  the  trust  do  not  require  a 
fee  in  the  trustees ;  and  that,  on  the  other  hand,  when  an 
estate  is  given  by  deed  to  a  trustee  in  trust  without  words  of 
Inheritance,  there  is  no  authority  to  enlarge  the  estate  in  the 
trustee  because  the  purposes  of  the  trust  seem  to  require  a 
larger  estate.  There  is  a  very  respectable  amount  of  author- 
ity, even  in  England,  that  an  estate  given  to  trustees  and 
their  heirs  in  trust,  by  a  deed,  may  be  restricted  to  an  estate 
for  the  life  of  another,  where  the  purposes  of  the  trust  can  all 
be  answered  by  such  an  estate  in  the  trustee.^  In  the  cases 
sustaining  the  power  to  abridge  the  legal  operation  of  the 
words  of  inheritance  in  a  deed,  there  were  some  further  lim- 
itations of  the  estate,  either  to  the  trustees  or  to  third  per- 
sons, inconsistent  with  the  idea  of  a  fee  in  the  trustees.^  The 
authorities,  however,  greatly  preponderate,  that  courts  cannot 
look  to  the  equitable  interests  given  or  created  by  a  deed,  in 
order  to  determine  whether  the  trustee  under  it  takes  a  fee 
or  not,  if  there  are  plain  words  of  inheritance  in  it.  Lord 
Eldon  said,  that  it  appeared  to  him  very  difficult  to  apply 

751;  Elton  v.  Shepherd,  1  Bro.  Ch.  531 ;  2  Jarm.  Pow.  Dev.  631;  Doe  v. 
Willaii,  2  B.  &  Aid.  84;  Smith  v.  Thompson,  2  Swan,  386  ;  Foster  v.  Coe, 
4  Lansing,  59;  Fellows  v.  Heermans,  Td.  230;  and  Aiken  v.  Smith,  1 
Sneed,  304,  held  that  when  personalty  was  limited  to  trustees,  their  heirs 
and  executors,  in  trust  for  a  married  woman  for  life,  and  after  her  death 
to  be  equally  divided  among  her  children,  or  to  be  conveyed  to  her  chil- 
dren, the  trustee  took  an  estate  for  her  life  only,  and  that  at  her  death  the 
trust  ceased.  These  cases,  however,  are  not  consistent  with  principle  or 
authority,  and  probabl)'  would  not  be  followed. 

1  Curtis  V.  Price,  12  Ves.  89;  Venables  v.  Morris,  7  T.  R.  342,  438; 
Doe  i;  Ilicks,  Id.  437;  Prune  v.  Martyn,  8  B.  &  Cr.  497;  Beaumont  r. 
Salisbury,  19  Beav.  (198,  where  the  authorities  were  commented  on); 
Lewis  V.  Rees,  3  K.  &  J.  132 ;  Cooper  v.  Kynock,  L.  R.  8  Ch.  403. 

2  Ibid. 

421 


§  320.]  ESTATE   OF   THE   TRUSTEE.  [CHAP.  X. 

the  doctrine  to  a  deed,  and  he  refused  thus  to  cut  down  an 
estate.^  While  there  is  this  conflict  of  authority  upon  the 
point,  whether  an  estate  given  in  fee  by  deed  to  trustees  can 
be  abridged  to  the  extent  of  the  trust,  there  is  said  to  be  no 
authority  in  England  that  an  estate  given  by  a  deed  to  trus- 
tees without  words  of  inheritance  can  be  enlarged  to  suit  the 
purposes  of  the  trust ;  ^  although  there  is  one  expression  by 
Lord  Hardwicke  that  such  enlargement  is  within  the  power 
of  the  court  when  the  circumstances  require  it.^ 

§  320.  Tn  the  United  States,  the  distinction  between  deeds 
and  wills,  in  respect- to  the  trustees'  estate,  has  not  been  kept 
up ;  and  the  general  rule  is,  that,  whether  words  of  inheri- 
tance in  the  trustee  are  or  are  not  in  the  deed,  the  trustee  will 
take  an  estate  adequate  to  the  execution  of  tiie  trust,  and  no 
more  nor  less.*  Courts  will  abridge  the  estate  where  words 
of  inheritance  are  used,  if  the  execution  of  the  trust  does  not 
require  a  fee  ;  and  so  they  will  enlarge  the  estate  if  no  words 
of  inheritance  are  used  in  a  deed.^  In  examining  the  cases, 
however,  where  a  trust  ceases  upon  the  death  of  a  tenant  for 
life,  or  upon  the  death  of  a  person  for  whom  the  property  was 
held  in  trust,  care  must  be  taken  that  this  principle  is  not 
confounded  with  another.  Thus,  where  an  estate  is  given  to 
trustees  and  their  heirs  in  trust  to  pay  the  income  to  A.  dur- 
ing her  life,  and  at  her  decease  to  hold  the  same  for  the  use 

1  Wykham  v.  Wykham,  18  Ves.  395;  Colomore  v.  Tyndall,  2  Y.  &  J. 
605  ;  Co.  Litt.  20  b.:  Butl.  n.  viii.  ;  Dinsmore  v.  Biggert.  9  Barr,  123; 
Lewis  V.  Rees,  3  K.  &  J.  132,  where  the  authorities  are  reviewed  by 
Wood,  V.  C. 

2  Pottow  V.  Fricker,  6  Exch.  570;  Hill  on  Trustees,  251. 

3  Villiers  v.  Villiers,  2  Atk.  72. 

4  King  I'.  Parker,  9  Cush.  71;  Stearns  v.  Parker,  10  Met.  32;  Gould  v. 
Lamb.  11  Met.  84;  Cleveland  r.  Hallett,  6  Cush.  403;  Att'y-Gen.  v.  Fed- 
eral Street  ]\Ieeting  House,  3  Gray,  1  ;  Wright  v.  Delafield,  23  Barb.  49S, 
Fisher  v.  Fields,  10  Johns.  105;  Welch  v.  Allen,  21  Wend.  147;  Rutledge 
V.  Smith,  1  Busb.  Eq.  283',  Liptrot  v.  Holmes,  1  Kelly  (Ga.),390;  Cooper 
V.  Kynock,  L.  R.  8  Ch.  402. 

6  NeiLson  v.  Lagow,  12  How.  110;  North  v.  Philbrook,  34  Me.  537; 
Rutledge  v.  Smith,  1  Busb.  Eq.  283;  Cleveland  v.   Hallett,  6  Cush.  406. 
See  to  the  contrary,  Miles  v.  Fisher,  10  Ohio,  1. 
422 


CHAP.  X.]     WHETHER    TRUSTEES    TAKE    AN    INHERITANCE.       [§  320. 

of  her  cliildrcii  or  her  heirs,  or  for  the  use  of  other  persons 
named,  the  trust  ceases  upon  the  death  of  A.  for  the  reason 
that  it  remains  no  longer  an  active  trust ;  the  statute  of  uses 
immediately  executes  the  use  in  those  who  are  limited  to  take 
it  after  the  death  of  A.,  and  the  trustees  cease  to  have  any- 
thing in  the  estate,  not  because  the  court  has  abridged  their 
estate  to  the  extent  of  the  trust,  but  because,  having  the  fee 
or  legal  estate,  the  statute  of  uses  has  executed  it  in  the 
cestui  que  trust}  But  where  the  operation  of  the  statute  of 
uses  does  not  put  an  end  to  the  trust,  and  where  it  is  neces- 
sary to  enlarge  an  estate  although  there  are  no  words  of 
inheritance,  courts  have  been  obliged  to  resort  to  different 
expedients  to  avoid  the  technical  rules  of  law  upon  the  subject 
of  inheritances.^  In  those  States  where  no  technical  or  other 
words  are  necessary  to  convey  a  fee  no  difficulties  arise. 

^  Parker  v.  Converse,  5  Gray,  336  ;  Greenwood  v.  Coleman,  34  Ala.  150; 
Churchill  v.  Corker,  25  Ga.  479.  See  Vallette  v.  Bennett,  69  111.  336. 
And  whenever  the  active  duties  required  of  the  trustee  have  been  per- 
formed and  the  purpose  of  the  trust  ceases,  having  no  longer  any  proper 
object  to  serve,  the  legal  estate  is  executed  in  the  cestui  que  trust,  without 
further  action  by  the  court  or  the  trustee.  Stoke's  App.,  80  Pa.  St.  337; 
Dodson  V.  Ball,  60  Pa.  St.  492;  Meacham  v.  Steele,  93  111.  135;  Wells  v. 
McCall,  64  Pa.  St.  207;  Yarnell's  App.,  70  Pa.  St.  335.  And  this  is 
always  so  when  an  estate  of  inheritance  or  an  absolute  estate  is  put  in 
trust  for  coverture.  Megargee  v.  Naglee,  64  Pa.  St.  216;  Lynch  v.  Swayue, 
83  111.  336.  If  the  trust  property  is  to  be  sold  and  proceeds  distributed 
to  the  beneficiaries,  there  is  still  an  active  trust,  and  the  estate  is  not 
executed  in  the  cestui.  Kirkland  v.  Cox,  94  111.  402 ;  Read  v.  Power,  12 
R.  I.  16. 

2  Williams  v.  First  Presby.  Soc,  1  Ohio  St.  498;  Rutledge  v.  Smith,  1 
Busb.  Eq.  283;  Co.  Litt.  385,  386;  1  Prest.  Touchstone,  182;  Rawle  on 
Covenants,  344;  Shaw  v.  Galbraith,  7  Pa.  St.  112. 

423 


§  321.]  PROPERTIES   OF   THE   TRUST   ESTATE.  [CHAP.  XI. 


CHAPTER   XI. 

PROPERTIES   AND   INCIDENTS   OF   THE   LEGAL   ESTATE   IN   THE 
HANDS   OF  TRUSTEES. 

§  321.    Common  law  properties  attach  to  estates  in  trustees. 

§  322.  Dower  and  curtesy  in  trust  estates. 

§§  323,  324.  Dower  and  curtesy  in  equitable  estates  of  cestui  que  trust. 

§  325.  Forfeiture  and  escheat  of  t-rust  estates. 

§  326.  Trustees  must  perform  duties  of  legal  owners. 

§  327.  Forfeiture  and  escheat  of  the  equitable  estates  of  cestui  que  trust. 

§  328.  Suits  concerning  legal  title  must  be  in  name  of  trustee. 

§  329.  Who  has  possession  and  control  of  trust  estates. 

§§330,331.  Who   has   possession   of  personal   estate.       Rights  and   privileges  of 
trustees. 

§  332.  Who  proves  debt  against  bankrupt. 

§  333.  Who  has  the  right  of  voting. 

§  334.  Trustee  maj'  sell  the  legal  estate. 

§  335.  May  devise  the  legal  estate.     But  see  §  341. 

§  336.  By  what  words  in  a  devise  the  trust  estate  passes. 

§  337.  Where  a  trust  estate  passes  by  a  devise,  and  where  not. 

§  338.  The  interest  of  a  mortgagee  in  fee. 

§  339.  Propriety  of  devising  a  trust  estate. 

§  340.  Whether  a  devisee  can  execute  the  trust. 

§  341.  Rule  in  New  York,  &c. 

§  342.  Where  a  testator  has  contracted  to  sell  an  estate. 

§§  343,  344.  Rights  of  the  last  surviving  trustee,  and  his  heirs  or  executors. 

§  345.  Trust  property  does  not  pass  to  bankrupt  trustee's  assignee. 

§  346.  A  disseizor  of  a  trust  estate  is  not  bound  by  the  trust. 

§§  347,  348.  Merger  of  the  equitable  and  legal  titles. 

§§  349,  350.  Presumption  of  a  conveyance  or  surrender  by  trustee  to  cestui  que  tmst. 
§§  351-353.  Where  the  presumption  will  be  made,  and  where  not. 

§  354.  Must  be  some  evidence  on  which  to  found  the  presumption. 

§  355.  Is  made  in  favor  of  an  equitable  title,  not  against  it. 

§  321.  As  a  general  rule,  the  legal  estate  in  the  hands  of 
a  trustee  has  at  common  law  precisely  the  same  properties, 
characteristics,  and  incidents,  as  if  the  trustee  were  the  abso- 
lute beneficial  owner.  The  legal  title  vests  in  him,  together 
witli  all  the  appurtenances  and  all  the  covenants  that  run 
with  the  land.^      The  trustee  may  sell  and  devise  it,  or  mort- 

1  Devin  v.  Henderchott,  32  Iowa,  192. 
424 


CHAP.  XI.]      DOWER  AND  CURTESY  IN  EQUITABLE  ESTATE.       [§  322. 

gage  it,  or  it  may  be  taken  on  execution.  It  may  be  forfeited, 
and  it  will  escheat  on  failure  of  heirs,  and  so  it  will  descend 
to  heirs  on  the  deatli  of  the  trustee.^  All  these  properties 
and  incidents  attach  to  the  legal  estate  at  common  law, 
whether  in  the  hands  of  a  trustee  or  of  an  absolute  owner ; 
but  these  incidents  do  not  generally  interfere  with  the  proper 
execution  of  the  trust,  for  all  conveyances  and  all  incum- 
brances made  or  imposed  upon  the  estate  by  the  trustee,  for 
other  purposes  than  those  of  the  trust,  or  in  breach  of  the 
trust,  are  utterly  disregarded  by  a  court  of  equity,  whatever 
may  be  the  effect  of  such  conveyances  or  incumbrances  in  a 
court  of  common  law.^  And  as  the  trustee  may  in  a  court 
of  law,  as  a  general  rule,  deal  with  the  legal  estate  in  his 
hands,  as  if  he  was  the  absolute  owner,  so  the  cestui  que  trust 
in  a  court  of  equity  may  deal  with  the  equitable  estate  in 
him :  he  is  the  beneficial  and  substantial  owner,  and  in  the 
absence  of  any  disability,  —  that  is,  if  he  is  sui  juris,  —  he 
may  sell  and  dispose  of  it ;  and  any  legal  conveyance  of  it 
will  have  in  equity  the  same  operation  upon  the  equitable 
estate  as  a  similar  conveyance  of  the  legal  estate  would  have 
at  law  upon  the  legal  estate.^  While  a  trust  for  the  general 
benefit  of  one  sui  juris,  not  confined  to  maintenance,  may 
create  a  transmissible  interest,  yet  a  trust  for  the  maintenance 
of  an  imbecile  son  will  not  create  a  transmissible  interest, 
although  the  will  contains  a  limitation  over  to  the  issue  of 
such  son.*  In  case  of  a  trust  for  the  use  of  a  married  woman 
as  if  she  were  sole,  the  husband  has  no  control  over  the  prop- 
erty, and  cannot  of  himself  lease  or  otherwise  dispose  of  it.^ 

§  322.  The  legal  estate  in  the  hands  of  a  trustee  was  sub- 
ject at  common  law  to  dower  and  curtesy  ;  ^  but,  as  those  who 

1  Zabriskie  v.  Morris  &  Essex  R.  Co.,  33  N.  J.  Eq.  22. 

2  Leake  v.  Leake,  5  Ir.  Eq.  306. 

8  Matthews  v.  Wardel,  10  G.  &  J.  443 ;  Burgess  v.  Wheate,  1  Eden, 
226;  Croxall  v.  Sherard,  5  Wall.  268;  Reid  v.  Gordon,  3.5  Md.  184;  Bote- 
ler  r.  Allington,  1  Hro.  Ch.  72;  Campbell  v.  Prestons,  22  Grat.  390. 

*  Gray  v.  Corbit,  4  Del.  Ch.  135. 
6  Panili  V.  Coles,  81  Va.  380. 

*  Bennett  v   Davis,  2  P.  Wms.  319;  Noel  v.  Jevon,  Freem.  43;  Nash  v. 

425 


§  323.]  PROPERTIES    OF    THE    TRUST    ESTATE.  [CHAP.  XI. 

take  ill  dower  or  curtesy  take  by  operation  of  law,  they  are 
subject  to  the  same  equities  as  the  original  trustee ;  there- 
fore, if  the  widow  of  a  trustee  should  take  dower  in  a  trust 
estate,  she  would  take  her  dower  subject  to  the  same  trusts 
that  the  estate  was  under  in  the  hands  of  her  husband.  It 
would  thus  be  of  no  benefit  to  her  ;  and  it  is  now  understood 
to  be  the  equitable  rule,  that  a  widow  has  no  dower  in  the 
lands  held  by  her  husband  as  trustee,  and  the  same  observa- 
tions apply  to  the  right  of  curtesy  in  trust  estates.^  If,  how- 
ever, the  equitable  estate  meets  the  legal  estate  in  the  same 
holder,  the  equitable  merges  in  the  legal  estate,  and  dower 
and  curtesy  will  attach  ;2  and  so  they  will  attach  so  far  as 
there  is  a  beneficial  interest  in  the  trustee.^ 

§  323.  While  speaking  upon  this  subject,  it  may  be  said 
that,  until  lately,  in  England,  the  widow  of  a  cestui  que  trust 
had  no  dOwer  in  his  equitable  estate,  or  his  equitable  fee  in 
lands.^  A  widow  was  not  dowable  of  a  use,  and  lands  were 
frequently  conveyed  to  uses  to  defeat  the  right  of  dower.^ 
Thus,  if  a  man  before  marriage  conveyed  his  lands  to  trus- 
tees upon  trust  for  himself  and  his  heirs  in  fee,  or  if  after 
marriage  he  purchased  lands,  and  took  the  conveyance  to  a 
trustee  upon  a  trust  for  himself  and  his  heirs,  his  wife  had 
no  riglit  of  dower.^     But  if  lands  were   settled  on  trustees 

Preston,  Cro.  Car.  190;  Casborne  v.  English,  2  Eq.  Ca.  Ab.  728;  Hinton 
V.  Hinton,  2  Ves.  631 ;  1  Sugd.  V.  &  P.  358. 

1  King  V.  Bushnel,  121  111.  656;  Derush  v.  Brown,  8  Ham.  412;  Green 
V.  Green,  1  Ham.  219;  Cooper  i'.  Whitney,  3  Hill,  97;  Powell  v.  Monson, 
&c.,  3  Mason,  361;  Hartlett  v.  Gouge,  5  B.  Mon.  152;  Cowman  v.  Hall, 
3  Gill  &  J.  398;  Robison  v.  Codman,  1  Sumn.  129  ;  Dean  v.  Mitchell,  4 
J.  J.  Marsh.  451;  Ray  v.  Pung,  5  B.  &  Aid.  561;  Gomez  v.  Tradesmen's 
Bank,  4  Sandf.  102.  ^  Hopkinson  v.  Dumas,  42  N.  H.  303. 

3  4  Kent,  43,  46;  Prescott  v.  Walker,  16  N.  H.  343 

4  Dixon  V.  Saville,  1  Bro.  Ch.  326;  Maybury  v.  Brien,  15  Pet.  38; 
D'Arcy  v.  Blake,  2  Sch.  &  Lef.  387;  2  Eq.  Ca.  Ab.  381;  4  Kent,  43:  1 
Rop.  Hus.  &  Wife,  354;  Banks  v.  Sutton,  2  P.  Wms.  716,  was  overruled; 
Park  on  Dow.  138.  In  Pennsylvania,  however,  a  wife  can  have  dower  in 
both  legal  and  equitable  estates.     Dubs  v.  Dubs,  31  Pa.  St.  154. 

6  Wms.  Real  Prop.  134-136;  Perkins,  §  349. 
6  Co.  Litt.  208  a  (n.  105). 

426 


CHAP.  XI.]     DOWER  AND  CURTESY  IN  EQUITABLE  ESTATES.     [§  324. 

upon  a  trust  for  a  woman  and  her  heirs  in  fee,  her  husband 
was  entitled  to  his  curtesy.^  This  anomaly  grew  up  from  an 
attempt  to  give  to  equitable  estates  the  same  incidents  that 
belong  to  legal  estates ;  but  when  it  was  proposed  to  assign 
dower  to  a  widow  out  of  her  husband's  equitable  estate,  it 
was  found  that  it  would  disarrange  so  many  titles  and  estates 
that  the  attempt  was  abandoned.  The  same  inconvenience 
did  not  arise  in  allowing  curtesy  to  a  husband,  for  the  reason 
that  a  wife  could  not  convey  her  equitable  interests  without 
her  husband  joining  in  tlie  act,  and  thus,  to  allow  him  cur- 
tesy would  not  affect  titles  to  any  considerable  extent.^  But 
by  a  late  statute  a  wife  is  now  dowable  in  equity  of  all  the 
lands  in  which  her  husband  dies  possessed  of  a  beneficiary 
interest.^ 

§  324.  The  general  rule  in  the  United  States  is,  that  a 
wife  is  dowable  in  equity  in  all  lands  to  which  the  husband 
had  a  complete'*  equitable  title  at  the  time  of  his  death.^ 
This  rule,  it  is  presumed,  would  apply  in  all  the  States  where 

1  D'Arcy  v.  Blake,  2  Sch.  &  Lef.  387,  Chaplin  v.  Chaplin,  3  P.  Wms. 
234 ;  Attorney-General  v.  Scott,  t.  Talb.  139;  Watt  v.  Ball,  1  P.  Wms.  108; 
Sweetapple  v.  Bindon,  2  Vern.  536;  Cunningham  v.  Moody,  1  Ves.  174; 
Dodson  V.  Hay,  3  Bro.  Ch.  405. 

2  Chaplin  v.  Chaplin,  3  P.  Wms.  234;  Attorney- General  v.  Scott,  t. 
Talb.  139;  Burgess  r.  Wheat,  1  Ed.  196;  Dixon  v.  Saville,  1  Bro.  Ch.  327; 
Banks  v.  Sutton,  2  P.  Wms.  713;  Casburne  v.  Casburne,  2  J.  &  W.  204; 
Watt  V.  Ball,  1  P.  Wms.  109;  D'Arcy  v.  Blake,  2  Sch.&  Lef.  388. 

8  3  &  4  Wm.  IV.  c.  105;  1  Spence,  Eq.  Jur.  505. 

*  It  must  be  such  a  title  as  equity  would  enforce.  Efland  v.  Efland, 
96  N.  C.  488. 

6  Shoemaker  v.  Walker,  2  Serg.  &  R.  554;  Dubs  v.  Dubs,  31  Pa.  St.  154; 
Reid  V.  Morri.son,  12  Serg.  &  R.  18;  Miller  v.  Beverly,  1  Hen.  &  M.  368; 
Clairborne  o.  Henderson,  3  Hen.  &  M.  322  ;  Lawson  v.  Morton,  6  Dana, 
471 ,  Bowie  v.  Berry,  1  Md.  Ch.  452  ;  Miller  v.  Stump,  3  Gill,  304:  Hawley 
V.  James,  5  Paige,  318;  Thompson  v.  Thompson,  1  Jones  (N.  C),  430; 
Gully  i\  Ray,  18  Ky.  113;  Barnes  r.  Gay,  7  Iowa,  26;  Lewis  v.  James,  8 
Humph.  537;  Rowton  v.  Rowton,  1  Hen.  &  M.  92;  Gillespie  v.  Somer- 
ville,  3  St.  &  P.  447  ;  Robinson  v.  Miller,  1  B.  Mon.  93 ;  Smiley  v.  Wright, 
2  Ohio,  512;  Davenport  v.  Farrar,  1  Scam.  314;  Bowers  v.  Kee.secker,  14 
Iowa,  301 ;  Peay  v.  Peay,  2  Rich.  Eq.  409  ;  Mershon  v.  Duer,  40  N.  J.  Eq. 
333,  a  resulting  trust  in  husband. 

427 


§  325.]  PROPERTIES    OF    THE   TRUST    ESTATE.  [CHAP.  XI. 

the  common-law  principles  of  dower  prevail,  except  in  Maine 
and  Massachusetts,  where  a  wife  is  not  entitled  to  dower  in 
her  husband's  equitable  estates.^  The  husband  also  in  most 
States  has  curtesy  in  the  equitable  estates  of  his  wife.^  But 
the  wife  must  be  actually  in  possession  of  her  equitable  inter- 
est :  a  mere  right  not  in  possession  is  not  enough  to  entitle 
th^  husband  to  curtesy.^  But  the  husband's  curtesy  will 
not  be  defeated  by  the  negligence  of  the  trustee,  as  where 
money  is  directed  to  be  laid  in  land  in  such  manner  that  the 
husband  would  have  been  entitled  to  his  curtesy,  and  the 
trustee  neglected  to  invest  the  money  during  the  life  of 
the  wife,  the  husband  was  held  to  be  entitled  to  his  curtesy.* 
Nor  will  a  trust  for  the  separate  use  of  the  wife  exclude  the 
husband's  curtesy,  if  at  her  decease  the  estate  is  to  go  to  her 
heirs.^ 

§  325,  At  common  law  if  a  person  holding  land  committed 
treason  or  felony,  he  forfeited  his  land  to  the  crown ;  and 
if  he  died  without  heirs,  the  land  escheated  to  the  crown  or 
to  his  superior  lord.  Exactly  the  same  incidents  applied 
to  land  held  in  trust  for  another,  if  the  trustee  committed  a 
treason  or  felony,  or  died  without  heirs.^     This  rule  of  law 

1  Hamlin  v.  Hamlin,  16  Me.  141;  Reed  i-.  Whitney,  7  Gray,  533;  Lob- 
dell  V.  Hayes,  4  Allen,  187. 

2  Tilliiighast  v.  Coggeshall,  7  R.  I.  383;  Nightingale  v.  Hidden,  Id. 
11.5;  Dubs  V.  Dubs,  31  Pa.  St.  154;  Alexander  j;.  Warrance,  17  Mo.  228; 
Robinson  v.  Codman,  1  Sumn.  128;  Gardner  v.  Hooper,  3  Gray,  404; 
Houghton  V.  Hapgood,  13  Pick.  154;  Ravvlings  v.  Adams,  7  Md.  54;  and 
see  Fletcher  v.  Ashburner,  1  Bro.  Ch.  503,  and  Amer.  notes;  1  Green. 
Cruise,  147,  n.;  Gushing  v.  Blake,  30  N.  J.  Eq.  689. 

*  Parker  v.  Carter,  4  Hare,  413;  Sartill  v.  Robeson,  2  Jones,  Eq.  510; 
Pitt  ».  Jackson,  2  Bro.  Ch.  51;  Morgan  v.  Morgan,  5  Madd.  408;  4  Kent, 
Com.  31. 

*  Sweetapple  v.  Bindon,  2  Vern.  536;  Dodson  v.  Hay,  3  Bro.  Ch.  405; 
Parker  i\  Carter,  4  Hare,  413  ;  Casborne  v.  Scarfe,  1  Atk.  609 

5  Roberts  v.  Dixwill,  1  Atk.  609;  Hearle  v.  Greenbank,  3  Atk.  715; 
Morgan  v.  Morgan,  5  Madd.  408;  Follett  r.  Tyrer,  14  Sim.  125;  Bennett 
r.  Davis,  2  P.  Wms.  316;  Tillinghast  v.  Coggeshall,  7  R.  I.  383. 

«  Burgess  r.  Wheat,  1  Ed.  177:  1  Bro.  Ch.  123;  Hovenden  r.  Annesley, 
2  Sch.  &  Lef.  617;  Eales  v.  England,  Pr.  Ch.  200;  Pawlett  v.  Attorney- 
428 


CHAP.  XI.]     ESCHEAT  AND  FORFEITURE  OF  TRUST  ESTATES.    [§  327. 

lias  been  changed  in  England  by  statute.^  At  the  present 
day  the  land  either  will  not  be  forfeited  or  escheat,  or  the 
crown  or  superior  lord  will  take  it  subject  to  the  same  equi- 
ties under  which  the  trustee  held  it.  In  the  United  States, 
either  the  land  would  not  be  forfeited  or  escheat,  by  reason 
of  the  failure  or  incapacity  of  the  trustee  or  his  heirs,  or  the 
State  would  hold  it,  subject  to  all  the  equities  it  was  under  in 
the  hands  of  the  trustee.  It  might  not  go  to  the  State,  for 
the  reason  that,  if  trustees  are  wanting,  courts  will  appoint 
new  trustees  ;  and  if,  for  any  reason,  the  trust  estate  should 
vest  in  the  State,  care  would  be  taken  that  all  the  rights 
of  the  cestui  que  trust  should  be  protected.  There  are  stat- 
utes in  most  of  the  States  determining  the  rights  of  the  cestui 
que  trust  in  such  cases. 

§  326.  The  trustee  is  so  far  clothed  with  the  legal  title 
and  all  its  incidents,  that  he  must  perform  all  the  duties  of 
the  holder  of  the  legal  estate.'-^ 

§  327.  Before  the  statute  of  uses,  the  estate  of  the  cestui 
que  use  was  not  forfeited  for  crime,  and  did  not  escheat  upon 
failure  of  heirs ;  but  the  feoffee  to  uses  held  the  estate  abso- 
lutely as  his  own.3  ^j^fj  ^]^q  same  rule  was  afterwards  fol- 
lowed in  regard  to  trusts.^  Although  it  was  enacted  by 
statute  that  the  cestui  que  use  or  cestui  que  trust  should 
forfeit  his  equitable  interest  upon  conviction  for  treason,^  yet 

General,  Hard.  467;  Attorney-General  v.  Leeds,  2  M.  &  K.  243;  Penn  v. 
Baltimore,  1  Ves.  453;  Williams  v.  Lonsdale,  3  Ves.  Jr.  752;  Reeves  v. 
Attorney-General,  2  Atk.  223;  Geary  v.  Bearcroft,  Cart.  67;  King  v. 
Mildmay,  5  B.  &  Ad.  254;  Wilks's  Case,  Lane,  54;  Scounden  v.  Hawley, 
Comst.  i72. 

1  4  &  5  Wm.  IV.  c.  23;  39  &  40  Geo.  III.  c.  88;  Hughes  v.  Wells,  9 
Hare,  749;  14  Vic.  c.  60. 

2  Wilson  V.  Hoare,  2  B.  &  Ad.  350;  Trinity  Coll.  v.  Brown,  1  Vern.  441 ; 
2  Ld.  Raym.  994;  Bath  v.  Abney,  1  Dick.  260;  Carr  i-.  Ellison,  3  Atk.  73; 
1  Cru.  Dig.  305. 

8  Burgess  v.  Wheat,  1  Ed.  199,  per  Sir  Thomas  Clarke,  M.  R. 
*  Attorney-General  v.  Sands,  1  Hale,  P.  C.  249. 
6  33  Hen."  VIH.  c.  20;  1  Hale,  P.  C.  248. 

429 


§  328.]  PROPERTIES    OF    THE    TRUST    ESTATE.  [CHAP.  XI 

the  law  never  went  further  ;  and  if  the  cestui  que  trust  com- 
mitted afelont/,  so  that  lie  could  no  longer  claim  his  equitable 
rights,  the  trustee  continued  to  hold  the  lands  for  his  own 
use  discharged  of  the  trusts.^  And  so  it  was  held,  after  great 
debate  in  Burgess  v.  Wheat,  that  if  the  cestui  que  trust  left 
no  heirs,  the  trust  estate  of  inheritance  did  not  escheat,  but 
that  the  trustee  thenceforth  held  the  estate  discharged  of  the 
trust.2  This  case  has  been  doubted,^  but  it  has  been  followed 
as  the  law.*  This  is  upon  the  principle,  that  there  is  no 
want  of  a  tenant  to  the  land,  the  trustee  being  clothed  with 
all  the  rights  of  ownership  against  all  the  world  except  the 
cestui  que  trust,  and  those  claiming  under  him.  But  this 
principle  does  not  apply  to  chattels,  where  there  can  be  no 
tenant,  nor  to  leaseholds,^  nor  to  an  equity  of  redemption.^ 
In  the  United  States,  trustees  would  hold  personal  property 
subject  to  the  right  of  the  State  as  ultima  hceres,  m  case  the 
cestui  que  trust  died  without  heirs  or  next  of  kin  ;  and  it 
is  conceived  that  they  would  hold  real  estate  under  the  same 
rule." 

§  328.  It  is  the  duty  of  the  trustee  to  defend  and  protect 
the  title  to  the  trust  estate  ;  and,  as  the  legal  title  is  in  him, 
he  alone  can  sue  and  be  sued  in  a  court  of  law ;  the  cestui  que 

1  Attorney-General  v.  Sands,  1  Hale,  P.  C  249. 

2  Burjjess  v.  Wheat,  1  Ed.  177;  1  Black.  123;  1  Bro.  Ch.  123. 

3  Middleton  v.  Spicer,  1  Bro.  Ch.  204;  Fawcet  v.  Lowther,  2  Ves.  300, 
Sweeting  v.  Sweeting,  33  L.  J.  Ch.  211. 

*  Taylor  v.  Haygarth,  14  Sim.  8;  8  Jur.  185;  Henchman  v.  Attorney- 
General,  3  Myl.  &  K.  48.5;  Onslow  v.  Wallis,  1  IMac.  &  G.  506;  1  Hall 
&  T.  513;  Rittson  v.  Stordy,  3  Sm.  &  Gif.  230;  Barrow  v.  Wadkin,  24 
Beav.  1. 

5  Middleton  v.  Spicer,  1  Bro.  Ch.  201 ;  Walker  v.  Denne,  2  Ves.  Jr. 
170;  Barclay  v.  Russell,  3  Ves.  424;  Henchman  v  Attorney- General,  3 
Myl.  &  K.  485;  Taylor  v.  Haygarth,  14  Sim.  8;  Cradock  v.  Owen,  2  Sm 
&  Gif.  241;  Bishop  v.  Curtis,  17  Jur.  23;  Powell  v.  Merritt,  22  L.  J.  208; 
1  Sm.  &  Gif.  381. 

«  Down  V.  Morris,  3  Hare,  394. 

7  McCaw  V.  Galbraith,  7  Rich.  L.  75;  Darrah  v  McNair,  1  Ash.  236; 
Matthews  r.  Ward,  10  G.  &  J.  443;  4  Kent,  425;  Crane  v.  Ruder,  21 
Mich.  25. 

480 


CHAP.  XI.]  POSSESSION    AND    MANAGEMENT.  [§  328. 

trust,  the  absolute  owner  of  the  estate  in  equity,  is  regarded 
in  law  as  a  stranger.^  The  rule  is  carried  to  the  extent  that 
the  grantee  of  the  trustee  can  alone  maintain  an  action  upon 
the  legal  title,  although  the  conveyance  to  him  was  a  breach 
of  the  trust.2  To  protect  himself,  the  trustee  must  defend 
the  title  if  he  is  sued.  It  is  his  duty  to  give  the  cestui  que 
trust  notice  of  a  suit  hostile  to  his  interests,  and  to  defend  the 
action  in  good  faith.  To  act  otherwise  would  be  a  breach  of 
trust.^  A  trustee  may  also  maintain  an  action  for  any  tres- 
pass upon  the  land  ;  *  but  if  the  cestui  que  trust  is  in  the  actual 
possession  of  it,  he  may  maintain  an  action  for  any  injury  done 
to  his  possession.^  If,  however,  the  trust  is  terminated  by 
operation  of  law  or  otherwise,  and  the  property  has  vested 
in  the  cestui  que  trust,  he  may  after  that  time  maintain  an 
action  upon  the  title  ;^  and  so  if  thei'e  has  been  a  conveyance 
or -surrender  by  the  trustees  to  the  cestui  que  trust,''  or  a  pre- 
sumption of  a  surrender  from  the  fact  that  the  purposes  of 
the  trust  are  all  accomplished.*^     If  the  trustee  is  in  posses- 

1  May  V.  Taylor,  6  M.  &  Gr.  261;  Gibson  v.  Winter,  5  B.  &  Ad.  96; 
Allen  V.  Imlett,  Holt,  641;  Goodtitle  v.  Jones,  7  T.  R.  47;  Baptist  Soc.  v. 
Hazen,  100  Mass.  322;  Cox  v.  Walker,  26  Me.  504;  Beach  v.  Beach,  14 
Vt.  28;  Moore  v.  Burnet,  11  Ohio,  334  ;  Wright  v.  Douglass,  3  Barb.  59; 
Matthews  v.  Ward,  10  G.  &  J.  443;  Mordecai  v.  Parker,  3  Dev.  425;  Finn 
V.  Hohn,  21  How.  481  ;  Hooper  v.  Scheimer,  23  How.  235;  Fitzpatrick  v. 
Fitzgerald,  13  Gray,  400;  Chapin  v.  Universalist  Society,  8  Graj^  581; 
Crane  v.  Crane,  4  Gray,  323;  Davis  v.  Charles  River  Railroad,  11  Cush. 
506;  Raymond  v.  Holden,  2  Cush.  268;  Moody  v.  Farr,  33  Miss.  192; 
Adler  v.  Sewell,  20  Ind.  598;  Western  R.  R.  Co.  v.  Nolan,  48  N.  Y,  517; 
Church  V.  Stewart,  27  Barb.  5.53;  Ryan  v.  Bibb,  46  Ala.  323;  Ponder  v. 
McGruder,  42  Ga.  242;  Kirkland  v.  Cox,  94  111.  402. 

2  Reece  v.  Allen,  5  Gilm.  241 ;  Taylor  v.  King,  6  Munf.  358;  Canoy  v. 
Troutnian,  7  Ired.  155;  Cary  v.  Whitney,  48  Me.  516;  Matthews  v.  Mc- 
Pherson,  65  N.  C.  189;  Phillips  v.  Ward,  51  Mo.  295. 

3  Mackay  v.  Coates,  70  Pa.  St.  350;    Warland  v.  Colwell,  10  R.  I.  369. 
*  Walker  v.  Fawcett,  7  Ired.  44. 

5  Cox  V.  Walker,  26  Me.  504  ;  Stearns  v.  Palmer,  10  Met.  32  ;  Second 
Cong.  Soc.  North  Bridgewater  v.  Waring,  24  Pick.  300. 

6  NicoU  r.  Walworth,  4  Denio,  385;  Matthews  v.  McPherson,  65  N.  C. 
189;  Lockhart  v.  Canfield,  49  I\Iiss.  470. 

T  Den  ex  d.  Obert  v.  Bordine,  1  Spencer  (N.  J.),  394;  Hopkins  v. 
Ward,  6  Munf.  38;  Doggett  v.  Hart,  5  Fla.  215.  «  ibid. 

431 


§  329.]  PROPERTIES    OF   THE    TRUST    ESTATE.  [CHAP.  XI; 

sion,  he  must  sue  for  all  injuries  to  the  possession,  and  he  is 
the  proper  person  to  maintain  the  claim  for  damages  for  flow- 
ing the  land  under  the  mill  acts,  or  for  taking  it  for  railroad 
purposes,  turnpikes,  or  public  highways. ^  In  Pennsylvania, 
however,  the  action  of  ejectment  is  an  equitable  action,  and 
the  cestui  que  trust  may  maintain  the  suit  if  he  is  entitled  to 
possession,  or  it  may  be  maintained  by  the  trustee.^  In  a 
few  States  there  are  statutes  or  codes  which  enact  that  parties 
beneficially  interested  in  the  subject-matter  of  the  suit  shall 
be  made  the  parties'  plaintiffs  ;  but  the  right  or  duty  of  trus- 
tees, or  persons  holding  the  legal  title  in  a  fiduciary  ca- 
pacity, to  sue  is  generally  provided  for.^  Merely  nominal 
trustees,  as  officers  of  a  town  or  parish,  cannot  sue  in  their 
own  name.* 

§  329.  Whether  the  trustees  are  entitled  to  the  possession, 
control,  and  management  of  real  estate,  as  against  the  cestui 
que  trust,  depends  upon  the  whole  scope  of  the  settlement, 
and  the  nature  of  the  duties  which  the  trustees  are  required 
to  perform.  A  fund  in  trust  for  the  sole  use  of  a  person,  with 
power  to  dispose  of  the  fund  by  will,  does  not  give  the  cestui 
a  right  to  recover  possession  of  the  fund  from  the  trustee.^ 
If  the  entire  interest  is  vested  in  the  trustees,  and  they  are  to 
manage  the  property,  keep  it  insured,  and  pay  taxes,  premi- 
ums, annuities,  and  other  charges  out  of  the  income,  the  court 
will  imply  that  the  trustees  are  to  have  the  possession,  and 
will  not  take  it  from  them,  unless  there  is  some  very  clear 
intention   expressed   to   control    such   directions.^     And   the 

^  Davis  V.  Charles  River  R.  R.  Co.,  11  Cush.  506;  Woodruff  v.  Orange, 
32  N.  J.  49. 

2  School  Dir.  v.  Dunkleberger,  6  Barr,  29;  Presbyterian  Cong.  v. 
Johnston,  1  Watts  &  S.  56;  Kennedy  v.  Fury,  1  Dall.  76;  Hunt  v.  Craw- 
ford, 3  Pa.  426;  Caldwell  v.  Lowden,  3  Brews.  63. 

8  See  Codes  of  Xew  York  and  Ohio,  McGill  v.  Doe,  9  Ind.  306. 

•*  Regina  v.  Shee,  4  Q.  B.  2;  Manchester  v.  Manchester,  17  Q.  B.  8-59; 
Queen  v.  Commissioners,  15  Q.  B.  1012 ;  Connor  t\  Xew  Albany,  1 
Blackf.  88. 

5  Barkley  v.  Dosser,  15  Lea  (Tenn.),  529. 

«  Tidd  V.  Lister,  3  Madd.  429;  Naylor  v.  Arnitt,  1  R.  &  M.  501; 
432 


CHAP.  XI.]  ACTION  —  CONTROL  —  RIGHTS.  [§  330. 

trustees  may  purchase  whatever  is  necessary,  and  cultivate 
the  land  instead  of  renting  it.^  If  the  cestui  que  trust,  or 
tenant  for  life,  is  a  female,  the  court  will  continue  the  pos- 
session in  the  trustees  for  her  protection  in  case  of  marriage.^ 
So,  if  the  trustees  themselves  have  a  beneficial  interest,  or 
a  reversion  or  remainder  after  the  death  of  the  tenant  for 
life,  the  court  will  continue  the  possession  in  them.^  If, 
however,  the  plain  intention  of  tlie  settlement  is  that  the 
cestui  que  trust  is  to  have  the  possession,  then  all  other  con- 
siderations must  give  way  ;  as,  if  it  is  plain  that  the  settlor 
intended  the  estate  to  be  a  place  of  residence  for  the  cestui 
que  trust,  the  intention  must  be  carried  out.*  If  the  tenant 
for  life  takes  a  legal  estate,  subject  to  a  charge,  he  will  of 
course  be  entitled  to  the  possession,  so  long  as  he  discharges 
all  incumbrances  thus  put  upon  the  estate.^  But  if  the  ten- 
ant for  life  allows  the  annuities  or  other  charges  to  fall  in 
arrears,  the  trustees  must  take  possession  for  the  security  of 
the  annuitants,  and  must  continue  the  possession  until  ample 
security  is  made  for  the  future.^  Security  may  be  required 
in  any  case  where  the  tenant  for  life  is  let  into  possession.''' 

§  330.  The  trustee  is  entitled  to  the  possession  of  all  per- 
sonal securities,  such  as  bonds,  notes,  mortgages,  and  certifi- 
cates of  stocks,  belonging  to  the  trust  estate ;  and  he  may 
maintain  an  action  for  their  delivery,  even  against  the  cestui 
que  trust.^     All  personal   actions  for  injury  to  the  personal 

Young  V.  iNIiles,  10  B  Mon.  290;  Blake  v.  Bunbury,  1  Ves.  Jr.  194,  514; 
4  Bro.  Ch.  21;  Jenkins  v.  Milford,  1  J.  &  W.  629;  Moseley  v.  Marshall, 
22  N.  Y.  200;  Marsliall  v.  Sladen,  4  De  G.  &  Sm.  468;  Matthews  v.  Mc- 
Pherson,  65  N.  C.  189. 

1  Mayfield  v.  Kegour,  21  Md.  241. 

2  Ibid. ;  Weekham  r.  Berry,  55  Pa.  St  70. 
8  Ibid. 

*  Tidd  V.  Lister.  5  Madd.  4-32;  Campbell  v.  Prestons,  22  Grat.  396. 

5  Denton  v.  Denton,  7  Beav.  388;  Blake  v.  Bunbury,  1  Ves.  Jr.  194; 
Tidd  V.  Lister,  5  Madd.  432. 

6  Ibid. 

^  Ibid.;  Pugh  v.  Vaughn,  12  Beav.  517;  Langston  r.  Ollivant,  Coop. 
33;  Baylies  v.  Baylies,  1  Col.  137. 

8  Jones  V.  Jones,  3  Bro.  Ch.  80;  Poole  v.  Pass,  1   Beav.  600;  Beach  v. 
VOL.  I.  — 28  433 


§  330.]  PROPERTIES    OF   THE    TRUST   ESTATE.  [CHAP.   XI. 

property,  or  for  its  detention  or  conversion,  such  as  trespass,* 
trover,^  detinue,^  or  replevin,*  must  be  brought  in  the  name 
of  the  trustee,  although  the  possession  is  in  the  cestui  que 
trust,^  and  although  there  may  be  a  defect  in  the  title  of  the 
trustee  ;  ^  for  the  possession  of  the  cestui  que  trust  is  the  pos- 
session of  the  trustee,  and  in  law  he  is  not  allowed  to  dispute 
the  title  or  possession  of  his  trustee.'^  The  action  of  assump- 
sit is  an  equitable  action,  and,  generally,  if  a  promise  is  made 
to  one  for  the  benefit  of  another,  the  person  for  whose  benefit 
the  promise  is  made  may  bring  the  action  ;  but  if  a  promise 
is  made  to  a  trustee  for  the  benefit  of  the  cestui  que  trusty 
the  trustee  alone  can  sue.^  So  only  those  parties  can  sue  on 
a  contract  with  whom  it  is  made,  unless  it  is  negotiable  paper ; 
therefore,  substituted  trustees  cannot  sue  upon  a  contract 
made  with  their  predecessors  in  the  trust,  but  the  suit  must  be 
in  the  names  of  the  parties  with  whom  it  was  made,  for  the 
benefit  of  the  estate.^  Generally,  all  notices  and  tenders  i** 
must  be  made  to  the  trustees  ;  and  they  must  use  all  due  dili- 
gence in  prosecuting  suits  in  favor  of  the  estate  and  of  the 
cestui  que  trust,  and  they  must  take  the  proper  care  in  defend- 

Beach,  14  Vt.  28 ;  Gunn  v.  Barrow,  17  Ala.  743 ;  White  v.  Albertson,  3 
Dev.  241;  Guphill  v.  Isbell,  8  Rich.  L.  463;  Presley  v.  Stribling,  24  Miss. 
257;  Pace  v.  Pierce,  49  Mo.  393;  Ryan  v.  Bibb,  46  Ala.  343;  Western 
R.  R.  Co.  V.  Nolan,  48  N.  Y.  513. 

1  McRaeny  v.  Johnson,  2  Fla.  520. 

2  Hower  v.  Geesaman,  17  Serg.  &  R.  251;  Poage  v.  Bell,  8  Leigh, 
604;  Coleson  v.  Blanton,  3  Hayw.  152;  Guphill  v.  Isbell,  8  Rich.  L.  463; 
Thompson  v.  Ford,  7  Ired.  418;  Schley  v.  Lyons,  6  Ga.  530. 

8  Jones  V.  Strong,  6  Ired.  367;  Murphy  v.  Moore,  4  Ired.  Eq.  118; 
Chambers  v.  Mauldin,  4  Ala.  477;  Parsons  v.  Boyd,  20  Ala.  112;  Stoker 
V.  Yelby,  11  Ala.  327;  Baker  v.  Washington,  3  Stew.  &  P.  142;  Newman 
V.  Montgomery,  5  How.  (Miss.)  742. 

*  Presley  v.  Stribling,  24  Miss.  527;  Daniel  v.  Daniel,  6  B.  Mon.  230. 

5  Jones  V.  Cole,  2  Bail.  330  ;  Wynn  v.  Lee,  5  Ga.  236. 

®  Rogers  i\  White,  1  Sneed,  69. 

■^  White  V.  Albertson,  3  Dev.  241. 

8  Treat  v.  Stanton,  14  Conn.  445  ;  Porter  v.  Raymond.  53  N.  H.  519. 

8  Binney  v.  Plumly,  5  Vt.  500;  Ingersoll  r.  Cooper,  5  Blackf .  420 ; 
Davant  v.  Guerard,  1  Spear,  242;  Wake  r.  Tinkler,  16  East,  36. 

1°  Chahoon  v.  Hollenback,  16  Serg.  &.  R,  425;  Henry  v.  Morgan,  2  Binn. 
497. 

434 


CHAP.  XI.]  ACTION  —  CONTROL  —  RIGHTS.  [§331. 

ing  sucli  suits  ;  and  if  appeals  are  taken  from  decrees  or 
judgments  in  favor  of  the  estate,  or  of  the  cestui  que  trust, 
thev  must  duly  support  the  rights  of  the  cestui  que  trust  in 
whatever  court  the  case  may  be  carried. ^  If  the  cestui  que 
trust  brings  an  action  in  the  name  of  the  trustee,  the  trustee 
may  insist  upon  indemnity  against  the  costs.^  If  the  trustee 
collusively  releases  such  suit  without  the  consent  of  the  party 
beneficially  interested,  the  court  will  set  aside  the  release.^ 
So,  if  a  trustee  discharges  a  debt  or  mortgage  without  pay- 
ment, the  court  would  set  aside  the  discharge ;  *  and  if  a  trus- 
tee refuses  to  bring  a  suit,  or  to  allow  his  name  to  be  used, 
equity  will  compel  him  to  take  such  steps  as  the  interest  of 
the  estate  and  of  the  cestui  que  trust  requires.^  In  all  such 
suits  in  the  name  of  the  trustee,  a  debt  due  from  the  cestui 
que  trust  cannot  be  set  off.^  If  a  trustee  sue  for  matters  per- 
taining to  the  trust  estate,  a  private  debt  due  from  the  trustee 
cannot  be  set  off."  A  trustee  cannot  set  off  against  the  as- 
signee of  the  cestui  a  debt  for  money  lent  by  him  to  the  cestui 
before  his  appointment  as  trustee.^ 

§  331.  The  trustee,  being  liable  for  a  breach  of  the  trust, 
if  he  permits  any  misapplication  of  the  funds  should  of 
course  have  the  possession  and  control  of  all  personal  prop- 

^  Wood  V.  Burnham,  6  Paige,  513. 

2  Ins.  Co.  V.  Smith,  11  Pa.  St.  120;  Annesley  v.  Simeon,  4  Madd.  390; 
Roden  v.  Murphy,  10  Ala.  801. 

8  Anon.  Salk.  260;  Bauerman  v.  Radenius,  7  T.  R.  670;  Legh  v.  Legh, 
1  B.  &  P.  447 ;  Payne  v.  Rogers,  Doug.  407;  Manning  v.  Cox,  7  Moore, 
617;  Hickey  v.  Burt,  7  Taunt.  48;  Barker  v.  Richardson,  1  Y.  &  J.  362; 
Roden  v.  Murphy,  10  Ala.  804;  Greene  v.  Beatty,  Coxe,  142;  Kirkpatrick 
V.  McDonald,  11  Pa.  St.  387. 

4  Woolf  V.  Bate,  9  B.  Mon.  210. 

5  Blin  V.  Pierce,  20  Vt.  25;  Chisholm  v.  Newton,  1  Ala.  371;  Robin.son 
V.  Mauldin,  11  Ala.  978;  Welch  v.  Mandeville,  1  Wheat.  233;  Parker  v. 
Kelly,  10  Sm.  &  M.  181:  McCullum  v.  Coxe,  1  Dall.  139. 

®  Wells  V.  Chapman,  4  Sandf.  Ch.  312;  Campbell  v.  Hamilton,  4 
Wash.  C.  C.  93;  Woolf  v.  Bate,  9  B.  Mon.  211  ;  Beale  v.  Coon,  2  Watts, 
183;  Tucker  v.  Tucker,  4  B.  &  Ad.  745;  Porter  v.  Morris,  2  Ilarr.  .509. 

">  Page  V.  Stephens,  23  Mich.  357. 

8  Abbott  V.  Foote,  146  Mass.  333. 

435 


§  333.]  PROPERTIES   OF   THE   TRUST   ESTATE.  [CHAP.  XI. 

erty.  So  all  the  duties  and  privileges  which  attach  to  such 
property  pertain  to  him.  If  the  property  consists  of  stocks 
in  corporations,  he  may  attend  corporate  meetings,  vote,  and 
hold  office  by  virtue  of  such  stock.^  If  the  trustee  die,  the 
personal  property  devolves  upon  his  executor  or  adminis- 
trator until  the  appointment  of  a  new  trustee,  and  such  ex- 
ecutor or  administrator  has  a  right  to  vote  upon  stocks  at 
corporate  meetings.^  So  the  trustee  is  rated  or  assessed  for 
taxes,  and  must  see  that  the  taxes  upon  the  trust  property 
are  paid.  The  statutes  of  the  various  States  determine  the 
localities  where  such  property  shall  be  assessed  :  real  estate 
is  generally  assessed  in  the  parish,  town,  or  county  where  it 
is  situated ;  and  personal  property,  either  in  the  place  of  the 
domicile  of  the  trustee  or  of  the  cestui  que  trust,  as  the  stat- 
utes of  a  State  may  direct.  In  the  absence  of  a  statute,  the 
law  would  look  upon  the  trustee  as  the  owner,  and  assess  the 
property  at  his  domicile.^ 

§  332.  The  trustee  must  prove  a  debt  against  a  bankrupt 
debtor  of  the  estate,  as  he  is  the  person  to  receive  the  divi- 
dend ;  *  but  in  special  cases  the  concurrence  of  the  cestui  que 
trust  may  be  required,  as  where  he  may  have  a  right  to  re- 
ceive the  payment.^ 

§  333.  In  England,  trustees  had  at  common  law  the  right 
to  vote  for  local  officers  and  for  members  of  parliament,  by 
virtue  of  the  qualification  conferred  upon  them  by  the  trust 
property,  if  it  was  sufficient  in  amount.  Statutes  have,  how- 
ever, changed  the  common  law,  and  given  the  right  in  most 

1  Matter  of  Barker,  6  Wend.  .509;  Re  Phoenix  Life  Assur.  Co.,  2  John. 
&  H.  279. 

«  North  Shore  Ferry  Co.,  63  Barb.  556;  People  r.  Tebbetts,  4  Cow. 
364;  Bailey  v.  Hollister,  26  N.  Y.  112;  Middlebrook  v.  Merchants'  Bank, 
3  Keyes,  135 ;  Runn  v.  Vaughan,  Id.  345. 

3  Latrobe  v.  Baltimore,  19  Md.  13;  Green  v.  Mumford,  4  R.  I.  313 ;  and 
see  the  statutes  of  the  various  States. 

*  Ex  parte  Green,  2  Dea.  &  Ch.  116. 

6  Ex  parte  Dubois,  1  Cox,  310;  Ex  parte  Butler,  Buck,  426,  Ex  parte 
Gray,  4  Dea.  &  Ch.  778;  Ex  parte  Dickenson,  2  Dea.  &  Ch.  520. 

436 


CHAP.  XI.]        SALE    AND    DEVISE    OF    TRUST    PROPERTY.  [§334. 

cases  to  the  cestui  que  trust.     In  the  United  States,  property 
qualifications  of  voters  are  generally  abrogated.^ 

§  334.  Trustees  of  real  or  personal  estate  may,  at  law,  sell, 
convey,  assign,  or  incumber  the  same,  as  if  they  were  the 
beneficial  owners,^  and  each  of  several  trustees  may  exercise 
all  his  rights  of  ownership.  If  the  trustees  are  joint-tenants, 
each  may  receive  the  rents,^  and  each  may  sever  the  joint- 
tenancy  by  a  conveyance  of  his  share,*  and  each  may  collect 
the  dividends  on  stocks,  and  on  the  death  of  one,  the  sur- 
vivor may  sell  the  whole  estate.^  The  general  power  of  a 
trustee  to  sell  and  convey  the  estate  is  coextensive  with  his 
ownership  of  the  legal  title ;  and  this  general  power  over  the 
legal  title  is  entirely  distinct  from  the  execution  of  a  special 
power  given  in  respect  to  the  sale  of  an  estate.  Though  the 
trustee  may  thus  sell,  even  in  breach  of  the  trust,  a  conveyance 
without  consideration  will  not  injure  the  cestui  que  trust;  as 
the  grantee,  who  is  a  volunteer,  will  hold  up  on  the  same  trusts 
as  the  trustee  held,  and  if  the  purchaser  for  a  valuable  consid- 
eration have  notice  of  the  trust  he  will  still  hold  the  estate 
upon  trust.^  In  New  York,  however,  a  statute  has  converted 
the  trustee's  ownership  of  the  legal  title  into  a  power,  or  power 
in  trust ; '  and  w^here  a  trust  is  expressly  created  by  a  written 
instrument,  every  sale  in  breach  or  contravention  of  the 
trust  is  declared  to  be  absolutely  void,  even  if  the  sale  is 
under  the  sanction  of  a  court.^  Whether  a  trustee  intends 
to  convey  an  estate  is  frequently  a  question  made  upon  con- 

1  See  5  Tred.  Eq.  Appendix;  4  Kent,  Com.  195. 

2  Shortz  V.  Unangst,  3  Watts  &  S.  55;  Canoy  v.  Troutman,  7  Ired.  155. 

3  Townley  v.  Sherborne,  Bridg.  35. 

4  Boursot  V.  Savage,  L.  R.  2  Eq.  134. 
^  Saunders  i'.  Schmaelzle,  49  Cal.  59. 
*  See  ante,  §  321. 

T  Anderson  v.  Mather,  44  N.  Y.  249  ;  New  York,  &c.  v.  Stillraan,  30 
N.  Y.  174;  Fitzgerald  v.  Topping,  48  N.  Y.  441;  Fellows  v.  Ileermans,  4 
Lansing,  230  ;  Martin  v.  Smith,  5G  Barb.  600;  Critton  v.  Fairchild,  41  N. 
Y.  289.  The  law  is  the  same  in  Michigan.  Palmer  v.  Wilkins,  24  Mich. 
328.  See  Jones  v.  Shaddock,  41  Ala.  262;  1  Rev.  Stat.  730.  §  65;  Briggs 
V.  Palmer,  20  Barb.  392;  Briggs  v.  Davis,  20  N.  Y.  15;  21  N.  Y.  574. 

«  Cruger  i;.  Jones,  18  Barb.  468;  Lahens  v.  Dupasseur,  56  Barb.  256. 

437 


§  33(3.]  PROPERTIES    OF    THE    TRUST    ESTATE.  [CHAP.  XI. 

veyanccs,  and  it  has  been  determined  that  a  general  assign- 
ment of  all  the  trustee's  estates,  for  the  benefit  of  his  creditors, 
does  not  pass  estates  held  by  him  in  trust.^ 

§  335.  As  among  the  incidents  of  the  trustee's  legal  title 
in  the  trust  estate  is  his  power  to  sell  it,  so  he  may  devise  it 
by  his  last  will  and  testament.  The  principal  question  that 
here  arises  is,  whether  the  words  of  the  will  of  a  trustee  em- 
brace estates  held  by  him  in  trust,  for  a  trust  estate  will  not 
in  all  cases  pass  by  the  same  words  as  w^ould  pass  the  bene- 
ficial ownership  ;  for  wherever  an  estate  passes,  not  by  opera- 
tion of  law,  but  by  the  intention  of  any  one,  it  is  necessary 
to  find  the  intention  from  the  instrument  under  the  circum- 
stances in  which  it  is  made  ;  and  an  intention  to  devise  a  trust 
estate  is  not  so  readily  inferred  as  an  intention  to  devise  a 
beneficial  estate.  If  the  trust  is  only  a  personal  one,  the 
donor  using  no  words  requiring  continuance  of  the  trust 
beyond  the  life  of  the  immediate  trustee,  the  estate  cannot 
be  devised  by  the  trustee,  but  ceases  at  his  death.^ 

§  336.  An  assignment  in  general  words  by  a  trustee  of  all 
his  estate  for  his  creditors  will  not  pass  a  trust  estate,  for  the 
reason  that  the  court  will  not  presume  that  the  trustee  in- 
tended to  commit  a  breach  of  trust  ,-2  for  a  similar  reason  it 
has  at  times  been  said  that  a  devise  of  all  a  trustee's  estates 
in  general  words  would  not  operate  upon  estates  that  he 
held  in  trust,  unless  there  appeared  a  positive  intention  that 
they  should  so  pass.*  The  question  was  finally  considered  by 
Lord  Eldon  ;  and  after  a  careful  examination,  the  rule  was 
declared  to  be,  that  "  where  the  will  contained  words  large 
enough,  and  there  was  no  expression  authorizing  a  narrower 

1  Ludwig  V.  Highley,  5  Barr,  132;  Abbott,  Pet'r,  55  Me.  480. 

2  Hinckley  v.  Hinckley,  79  Me.  320. 

3  Cook  I'.  Tullis,  18  Wall.  332;  Kelly  v.  Scott.  49  N.  Y.  595,  In  re 
McKay,  1  Lowell,  345;  Chase  v.  Chapin,  130  Mass.  128. 

*  Casborne  v.  Scarfe,  1  Atk.  605 ;  Strode  v.  Russell.  2  Vern.  625;  Leeds 
V.  Munday,  3  Ves.  348;   Ex  parte  Sergison,  4  Ves.  147;   Ex  parte  Bowes, 
cited  note  1  Atk.  605;  Pickeriug  v.  Vowles,  1  Bro.  Ch.  198;  Att'y-Gen  v. 
Buller,  5  Ves.  340. 
438 


CHAP.  XI.]  DEVISE   OP   TRUST   PROPERTY.  [§  337. 

construction,  nor  any  such  disposition  of  the  estate  as  it  was 
unlikely  a  testator  would  make  of  property  not  his  own,  in 
such  case  the  trust  property  would  pass."  ^  Mr.  Hill  states 
the  rule,  "  that  a  general  devise  of  real  estate  will  pass  es- 
tates vested  in  the  testator  as  trustee  or  mortgagee,  unless  a 
contrary  intention  can  be  collected  from  the  expressions  of 
the  will,  or  from  the  purposes  or  limitations  to  which  the 
devised  lands  are  subjected."  ^  This  general  rule  is  acted 
upon  in  the  United  States.^ 

§  837.  Notwithstanding  the  rule,  that  a  trust  estate  will 
pass  by  general  words  in  a  devise,  unless  there  is  something 
in  the  will  to  show  a  contrary  intention,  there  has  continued 
to  be  a  conflict  of  opinion  upon  the  propriety  of  the  rule,  and 
more  conflict  upon  its  application.  But  a  charge  of  debts, 
legacies,  and  annuities  upon  the  estate  devised,  or  a  power 
given  to  sell  it,  is  an  indication  that  the  testator  did  not 
intend  that  the  trust  estate  should  pass  under  the  words  of 
his  devise,  for  the  reason  that  he  could  not  have  intended 
that  his  devisee  should  do  that  with  the  estate  which  would 
be  a  breach  of  trust.*  So,  if  there  is  a  limitation  of  the  estate 
in  strict  settlement,  with  a  great  number  of  complicated  con- 
ditions, contingencies,  remainders,  and  limitations,  it  will  not 

1  Braybrooke  v.  Inskip,  8  Ves.  436  ;  Roe  v.  Reade,  8  T.  R.  118,  Ex 
parte  Morgan,  10  Ves.  101 ;  Langford  v.  Auger,  4  Hare,  313  ;  Linsell  v. 
Thacher,  12  Sim.  178;  Ex  parte  Shaw,  8  Sim.  159;  Hawkins  v.  Obeen,  2 
Ves.  559. 

2  Hill  on  Trustees,  283. 

8  Taylor  v.  Benham,  5  How.  270  ;  Heath  v.  Knapp,  4  Barr,  228,  Jack- 
son V.  Delancy,  13  Johns.  537;  Hughes  v.  Caldwell,  11  Leigh,  342;  Merritt 
V.  Farmers'  Ins.  Co.,  2  Edw.  Ch.  547  ;  Ballard  v.  Carter,  5  Pick.  112;  Asay 
V.  Hoover,  5  Barr,  35;  Richardson  v.  Woodbury,  43  Me.  206;  Drane  v. 
Gunter,  19  Ala.  731. 

*  Rackhara  r.  Siddall,  16  Sim.  297 ;  1  Mac.  &  G.  607 ;  Hope  v.  Liddell. 
21  Beav.  183  ;  Life  Asso.  of  Scotland  v.  Siddall,  3  De  G.,  F.  &  J.  58;  Wall 
V.  Bright,  1  Q.  &  W.  494;  Leeds  v.  Munday,  3  Ves.  348  ;  Ex  parte  Mar- 
shall, 9  Sim.  555;  Re  Morley's  Trusts,  10  Hare,  293;  Sylvester  v.  Jarman, 
10  Price,  78;  Roe  v.  Reade,  8  T.  R.  118;  Att'y-Gen.  v.  Buller,  5  Ves.  339; 
Ex  parte  Morgan,  10  Ves.  101;  Ex  parte  Brettell,  G  Ves.  577;  Merritt  v. 
Farmers'  Ins.  Co-.  2  Edw    Ch.  547. 

439 


§  338.]  PROPERTIES   OF   THE   TRUST   ESTATE.  [CHAP.  XI. 

be  presumed  that  a  trustee  intended  to  devise  a  dry  trust  in 
a  legal  title  upon  such  terms,  and  the  estate  will  not  pass 
under  general  words  ;  ^  so  if  the  devise  is  to  A.  in  tail  with 
remainder  over  in  strict  settlement ;  ^  so  a  devise  to  a  testa- 
tor's nephews  and  nieces  in  equal  shares  as  tenants  in  com- 
mon, is  to  a  class  not  ascertained  at  the  date  of  the  will,  and 
will  not  by  general  words  pass  a  trust  estate.^  So  a  devise 
to  a  woman  for  her  separate  use,  imports  a  beneficial  use,  and 
not  a  dry  legal  estate,  and  the  trust  estate  would  not  pass  to 
her  under  general  words.*  But  a  devise  to  a  woman,  her 
heirs  and  assigns,  to  her  and  their  own  sole  and  absolute  use, 
passes  the  estate  for  the  reason  that  there  is  nothing  incon- 
sistent with  their  holding  the  absolute  use  in  trust ;  ^  and  a 
devise  to  A.  and  B.  to  be  equally  divided  between  them,  as 
tenants  in  common,  and  their  respective  heirs,  will  pass  the 
estate.^  A  devise  of  all  my  estates  will  pass  trust  property.'' 
So  a  devise  to  A.,  his  heirs  and  assigns,  to  and  for  his  and 
their  own  use  and  benefit  ;  ^  and  a  devise  to  A.  and  her  heirs, 
to  be  disposed  of,  by  her  will  or  otherwise,  as  she  shall  think 
fit,9  will  pass  trust  property  under  general  words,  for  there  is 
no  necessary  breach  of  the  trust. 

§  338.  The  interest  of  a  mortgagee  in  fee  in  the  mortgaged 
land  stands  upon  a  somewhat  different  ground.     The  mort- 

^  Braybrooke  v.  Inskip,  8  Ves.  434. 

2  Thompson  v.  Grant,  4  Madd.  438;  Ex  parte  Bowes,  cited  1  Atk. 
603  ;  Galliers  v.  Moss,  9  B.  &  Cr.  267 ;  Re  Hoisfall,  1  McClel.  &  Y.  292. 

3  Re  Finney's  Est.,  3  Gif.  465. 

*  Lindsell  v.  Thacher,  12  Sim.  178  ;  the  case  itself,  not  the  marginal 
note. 

5  Lewis  V.  Mathews,  L.  R.  2  Eq.  177. 

6  Ex  parte  Whiteacre,  cited  Lewin  on  Trusts,  186 ;  1  Saund.  Uses  & 
Tr.  3:)9;  Re  Morley's  Trusts,  10  Hare,  293. 

■^  Braybrooke  v.  Inskip,  8  Ves.  42.3 ;  Bangs  v.  Smith,  98  Mass.  273 ; 
Amory  v.  Meredith,  7  Allen,  397;  Willard  v.  Ware,  10  Allen,  263;  Stone 
V.  Hackett,  12  Gray,  237. 

8  Ex  parte  Shaw,  8  Sim.  159,  Bainbridge  v.  Ashburton,  2  Y.  &  C.  347; 
Sharpe  v.  Sharpe,  12  Jur.  598  ;  Ex  parte  Brettell,  6  Ves.  577;  Heath  v. 
Knapp,  4  Barr,  228;  Abbott,  Pet'r,  55  Me.  580. 

9  Ibid. 

440 


CHAP.  XI.]  DEVISE   OF   TRUST   PROPERTY.  [§  339. 

gagee  has  a  debt  due  him  which  is  the  principal  thing,  and 
the  mortgage  is  a  beneficial  interest  in  the  land  as  security 
for  the  debt.  This  interest  generally  goes  with  the  debt. 
And  mortgage  estates  will  pass  by  a  general  devise,  not- 
withstanding a  charge  of  debts  and  legacies,  if  the  intent 
appears,  to  pass  them  as  securities  for  money .^  But  if  there 
are  special  trusts  for  sale,  or  other  special  charges  annexed  to 
the  devise,  inconsistent  with  the  idea  of  holding  the  estate 
as  security  for  money,  it  would  not  pass  under  a  general 
devise.2 

§  339.  In  allowing  a  trust  estate  to  pass  under  general 
words  of  a  devise,  it  is  assumed  that  the  testator  does  not 
intend  by  his  devise  to  commit  a  breach  of  the  trust.  It  is 
simply  a  question,  whether  the  testator  has  devised,  or  can 
or  should  devise,  a  trust  estate,  or  whether  he  should  allow 
it  to  descend  to  his  heir  or  legal  representatives.  It  was  said 
in  Cook  V.  Crawford,  that  it  was  not  lawful  for  the  trustee 
to  dispose  of  the  estate,  but  that  he  ought  to  permit  it  to 
descend  ;  that  a  devise  did  not  differ  from  a  deed  inter  vivos  ; 
and  that  it  was  only  a  'post  mortem  conveyance.^  On  the 
other  hand,  it  is  said  that  there  is  a  wide  distinction  between 
a  conveyance  and  a  devise.  That  during  the  trustee's  life- 
time there  was  a  personal  trust  and  confidence  in  his  discre- 
tion, which  he  could  not  delegate  ;  that  the  settlor  could 
have  reposed  no  confidence  in  the  heir,  for  he  could  not  know 
beforehand  who  the  heir   would  be ;  that  if  the  estate  was 

^  Ex  parte  Barber,  5  Sim.  451 ;  Doe  v.  Benett,  6  Exch.  892 ;  Re  Cantley 
17  Jar.  124  ;  King's  Mort.,  5  De  G.  &  Sm.  644 ;  Knight  v.  Robinson,  2  K.  & 
J.  50;5;  Rippen  v.  Priest,  13  C.  B.  (n.  s.)  508;  Re  Arrowsmith,  4  Jur.  (n. 
8.)  1123;  Mather  v.  Thomas,  6  Sim.  119;  overruling  Galliers  v.  Moss, 
9  B.  &  C.  207;  Silvester  v.  Jarman,  10  Price,  78,  and  Re  Cantley,  17  Jur. 
124  ;  Ballard  v.  Carter,  5  Pick.  112  ;  Asay  v.  Hoover,  5  Barr,  35;  Richard- 
son V.  Woodbury,  43  Me.  206;  Field's  Mort.,  9  Hare  414,  overruling 
Benvoize  v.  Cooper,  10  Price,  78,  and  in  opposition  to  Doe  v.  Lightfoot, 
8  M.  &  W.  553. 

2  Re  Cantley,  17  Jur.  123. 

*  Cook  V.  Crawford,  13  Sim.  98  ;  and  see  Beasley  v.  Wilkinson,  13  Jur. 
649. 

441 


§  340.]  PROPERTIES    OF   THE   TRUST   ESTATE.  [CHAP,  XI. 

allowed  to  descend,  it  might  become  vested  in  married  women, 
infants,  bankrupts,  or  persons  out  of  the  jurisdiction  of  the 
court ;  and  that  therefore  it  could  not  be  a  breach  of  trust 
for  a  trustee  to  devise  the  estate  by  will  to  persons  capable 
of  executing  it,  or  of  transferring  it  to  other  trustees.^  Mr. 
Lewin  concludes  from  these  observations,  that  whether  the 
devise  of  the  trust  estate  is  proper  or  not  depends  upon  the 
circumstances  of  each  case.  If  the  heir  is  a  fit  person  to 
execute  the  trust,  the  testator  ought  not  to  intercept  the  de- 
scent and  pass  the  legal  estate  to  another,  and  especially  not 
to  an  unfit  person.  In  such  case  the  estate  of  the  testator 
might  be  liable  for  the  costs  of  restoring  the  trust  estate  to 
its  proper  channel  or  to  proper  trustees.  If,  however,  the 
heir  is  an  unfit  person,  as  an  infant,  bankrupt,  insolvent, 
lunatic,  married  woman,  or  out  of  the  jurisdiction,  it  may  be 
proper  to  devise  the  estate.^  And  this  seems  to  be  the  result 
of  the  authorities.^ 

§  340.  It  does  not  follow  that  the  devisee  can  execute  the 
trust  from  the  fact  that  the  legal  title  is  devised  to  him,  nor 
does  it  follow  that  the  heir  can  execute  the  trust  from  the 
fact  that  the  legal  title  descends  to  him.  How  far  either  can 
execute  the  trust  depends  upon  the  intention  of  the  settlor, 
to  be  gathered  from  the  terms  of  the  instrument.*  Thus,  if 
an  estate  is  so  vested  in  A.  that  A.  alone  shall  personally  ex- 
ecute the  trust,  neither  the  heir  nor  the  devisee  of  A.  could 
execute  it,  although  holding  the  legal  title.^  As  if  an  estate 
is  vested  in  A.  and  his  heirs  upon  a  trust  to  sell,  and  A. 
devises  the  estate,  neither  the  heir  nor  the  devisee  can  sell : 
for  the  heir  has  nothing  in  the  estate  to  sell,  it  having  gone 
to  the  devisee ;  and  the  devisee  has  no  power,  he  not  being 

^  Titley  v.  Wolstenholme,  7  Beav.  435;  Macdonald  v.  ^Valker,  14  Beav. 
556 ;  Wilson  v.  Bennett,  5  De  G.  &  Sm.  479. 

2  Lewin  on  Trusts,  187,  188. 

2  Beasley  v.  Wilkinson,  13  Jur.  649. 

<  Abbott,  Pet'r,  55  Me.  580. 

"  Mortimer  v.  Ireland,  6  Hare,  196;  11  Jur.  721;  Ockleston  v.  Heap, 
1  De  G.  &  Sm.  640. 
442 


CHAP.  XI.]  DEVISE   OF   TRUST   PROPERTY.  [§  341. 

mentioned  in  the  original  settlement.^  So,  where  property 
was  vested  in  two  trustees,  their  executors  and  administrators 
in  trust,  and  the  surviving  trustee  devised  the  property  to  A. 
and  B.,  and  appointed  A.,  B.,  and  C.  executors,  the  court 
refused  to  hand  over  the  property  to  A.  and  B.,  for  the  reason 
that  devisees  were  not  named  as  parties  who  could  execute  the 
trust ;  and  the  court  refused  to  hand  it  over  to  the  executors, 
for  the  reason  that  the  legal  title  was  given  away  from  them ; 
new  trustees  were  therefore  appointed  to  receive  the  property 
and  execute  the  trust.^  But  where  the  word  assigns  is  part 
of  the  limitation  of  the  estate  to  trustees,  as  where  an  estate 
is  vested  in  A.,  his  heirs,  executors,  administrators,  and  assigns 
in  trust,  and  A.  devises  the  estate,  the  devisee  may  execute 
the  trust,  for  the  reason  that  he  comes  within  the  limitation 
of  the  persons  who  may  take  the  trust  property  and  execute 
the  trust.^  This  principle  has  been  doubted  and  criticised,* 
but  it  seems  to  be  acted  upon  in  the  English  courts.^ 

§  341.  In  New  York,  Michigan,  Wisconsin,  Alabama,  and 
Missouri,  trust  property,  upon  the  death  of  the  surviving 
trustee,  does  not  descend  to  the  heir,  nor  can  it  be  devised, 
but  it  vests  in  the  court,  and  will  be  administered  by  the 
court  by  the  appointment  of  new  trustees  to  execute  the 
trust.^  In  the  other  States,  the  trust  estate  descends  to  the 
heir,  or  vests  in  the  devisee,  as  the  legal  title  must  go  some- 
where in   the  absence  of    a  statute,  upon  the  death  of  the 

^  Mortimer  v.  Ireland,  6  Hare,  19G;  11  Jur.  721;  Ockleston  v.  Heap, 
1  De  G.  &  Sm.  GiO;  Cookf.  Crawford,  13  Sim.  91;  Stevens  v.  Austen,  7 
Jur.  (n.  8.)  873;  Wilson  v.  Bennett,  5  De  G.  &  Sm.  475. 

2  Re  Burtt's  Est.,  1  Dr.  319;  Macdonald  v.  Walker,  14  Beav.  556. 

3  Titley  v.  Wolstenholme,  7  Beav.  425 ;  Saloway  v.  Strawbridge,  1  K. 
&  J.  371 ;  7  De  G.,  M.  &  G.  594. 

*  Ockleston  v.  Heap,  1  De  G.  &  Sm.  642. 

5  Mortimer  «.  Ireland,  6  Hare,  196 ;  11  Jur.  721 ;  Ashton  v.  Wood,  3  Sm. 
&  Cif.  430;  Hall  v.  May,  3  K.  &  J.  585;  Lane  v.  Debenham,  11  Hare,  188. 

«  Clark  V.  Crego,  47  Barb.  597 ;  Ilawley  v.  Ross,  7  Paige,  103 ;  McCos- 
ker  i;.  Brady,  1  Barb. Ch.  329;  People  r.  Morton,  5  Seld.  176;  ISIcDougald  i). 
Cary,  38  Ala.  320;  Hook  v.  Dyer,  47  Mo.  241.  This  rule  is  confined  to  real 
property.  Trusts  in  personal  property  are  governed  by  the  ordinary  rules 
that  apply  to  them  in  other  States.     Bucklin  c.  Bucklin,  1  X.  Y.  Dec.  242. 

443 


§  343.]  PROPERTIES    OF    THE    TRUST    ESTATE.  [CHAP.  XI. 

surviving  trustee.^  Courts  in  the  United  States  do  not  have 
occasion  often  to  consider  the  question,  whether  the  heir  or 
devisee  can  execute  the  trust,  as  new  trustees  can  be  ap- 
pointed in  any  case  at  the  desire  of  the  parties,  and,  in  many 
States,  the  trust  property  may  be  vested  in  the  new  trustees 
by  an  order  of  the  court.  In  most  cases,  it  would  simply 
be  a  question  whether  the  words  of  the  will  were  compre- 
hensive enough  to  pass  the  trust  estate,  or  whether  it  had 
descended  to  the  heir ;  and  this  question  would  be  important 
only  in  determining  who  should  make  a  conveyance  of  the 
trust  property  to  the  new  trustees,  if  it  became  necessary 
that  a  conveyance  should  be  made. 

§  342.  If  an  owner  of  real  estate  contracts  to  sell  it,  he 
becomes  a  trustee  of  the  legal  title  for  the  vendee  ;  and  if  he 
dies  before  conveying  the  legal  title,  it  will  descend  to  his 
heir  or  heirs,  as  the  legal  title  must  vest  somewhere ;  and  so 
he  may  devise  it;  and  the  heir,  in  case  it  descends,  and  the 
devisee,  in  case  it  is  devised,  may  be  called  upon  to  convey 
it  to  tlie  vendee.2  In  Massachusetts,  there  is  a  statute  author- 
izing the  vendor's  executor  or  administrator  to  convey  such 
estate,  under  the  direction  of  the  Court  of  Probate.^ 

§  343.  Trust  property  is  generally  limited  to  trustees,  as 
joint-tenants ;  and  if  by  the  terms  of  the  gift  it  is  doubtful, 
whether  the  trustees  take  as  joint-tenants,  or  tenants  in  com- 
mon, courts  will  construe  a  joint-tenancy  if  possible,  on 
account  of  the  inconvenience  of  trustees  holding  as  tenants 
in  common  ;  and,  where  statutes  have  abolished  joint-tenancy, 
an  exception  is  generally  made  in  the  case  of  trustees.  And 
courts  will  not  allow  a  process  for  the  partition  of  a  trust 
estate.*     Therefore,   upon  the  death  of  one  of  the  original 

^  Trusts  of  real  estate,  on  the  death  of  the  trustee,  vest  iu  the  heir, 
trusts  of  personalty  in  the  executor  or  administrator.  Schenck  v.  Scheuck, 
16  N.  J.  Eq.  174. 

2  Wall  V.  Bright,  IJ.  &  W.  494;  Read  v.  Read,  8  T.  R.  118. 

8  Gen.  Stat.  c.  117,  §§  5  and  6;  Reed  v.  Whitney,  7  Gray,  533. 

*  Baldwin  v.  Humphrey,  44  N.  Y.  609;  Saunders  v.  Schmaelzle,  49 
Cal.  59. 

444 


CHAP.  XI.]  DEVOLUTION    OF    THE    TRUST    ESTATE.  [§  344. 

trustees,  the  whole  estate,  whether  real  or  personal,  devolves 
upon  the  survivors,  and  so  on  to  the  last  survivor  ;  and  upon 
the  death  of  the  last  survivor,  if  he  has  made  no  disposition  of 
the  estate  by  will  or  otherwise,  it  devolves  upon  his  heirs  if 
real  estate,  and  upon  his  executors  or  administrators  if  it  is 
personal  estate.^  The  title  in  the  surviving  trustee  is  com- 
plete, and  no  breaches  of  trust  after  the  death  of  his  cotrustees 
can  be  charged  upon  their  estate  ;  ^  nor  can  the  representatives 
of  his  cotrustees  interfere  with  his  management  of  the  trust 
estate,  even  if  he  is  insolvent  or  unfit  for  the  trust.^  The 
cestui  que  trust  alone  can  interfere  or  apply  to  the  court  for 
redress  or  relief.  So  all  rights  of  action  are  in  the  surviving 
trustee,  and  he  may  sue  in  his  own  name  or  as  survivor, 
according  as  the  cause  of  an  action  accrued  before  or  after 
the  death  of  his  cotrustees ;  *  and,  in  case  of  his  death,  his 
executor  or  administrator  may  continue  the  action.^  The 
rule  is  that  actions  must  be  brought  in  the  names  of  the  par- 
ties to  the  contract.^ 

§  344.  So  absolute  is  the  rule  that  the  heir  or  administrator 
takes  the  trust  property  upon  the  death  of  the  last  surviving 
trustee,  that  a  husband,  as  administrator  of  his  wife,  takes  the 
personal  property  that  she  held  in  trust,  but  he  must  hold  it 
upon  the  original  trust.  "^  In  England,  the  heir  in  case  of  real 
estate  in  trust,  or  the  executor  in  case  of  personal,  is  com- 

^  Whiting  V.  Whiting,  4  Gray,  236;  Moses  v.  Murgatroyd,  1  Johns.  Ch. 
119;  De  Peyster  v.  Ferrars,  11  Paige,  13;  Shook  v.  Shook,  19  Barb.  653; 
Shortz  V.  Unangst,  3  W.  &  S.  45;  Gray  v.  Lynch,  8  Gill,  401,  Mauldin  v. 
Armstead,  14  Ala.  702;  Powell  v.  Knox,  16  Ala.  364;  Richeson  v.  Ryan, 
15  111.  13  ;  Stewart  v.  Pettus,  10  Mo.  755 ;  Jenks  v.  Backhouse,  1  Binn.  91 ; 
King  u.  Leach,  2  Hare,  59;  Watkins  v.  Specht,  7  Coldw.  585;  Webster  v. 
Vanderventer,  6  Gray,  429. 

2  See  post,  §  426. 

8  Shook  V.  Shook,  10  Barb.  653. 

*  Pticheson  v.  Ryan,  15  111.  13  ;  Wheatley  r.  Boyd,  7  Exch.  20. 

5  Nichols  V.  Campbell,  10  Grat.  561;  Powell  v.  Knox,  16  Ala.  364; 
Mauldin  v.  Armstead,  14  Ala.  702. 

«  Robins  v.  Deahon,  19  Ind.  204;  King  v.  Lawrence,  14  Wis.  238; 
Farrell  v.  Ladd,  10  Allen,  127 ;  Childs  v.  Jordan,  106  Mass.  323. 

T  Ante,  §  264;  Kuster  i'.  Howe,  3  Ind.  268. 

446 


§  345.]  PROPERTIES   OF   THE   TRUST   ESTATE.  [CHAP.  XI. 

petent  to  administer  and  execute  the  trusts,  but  they  cannot 
execute  discretionary  trusts  confided  personally  to  the  original 
trustee,  unless  the  power  and  confidence  are  also  confided  in 
them  by  the  instrument.^  In  the  United  States,  the  heirs  or 
executors  will  take  the  trust  property,  and  they  must  settle 
the  accounts  of  the  testator  in  relation  to  the  trust.  They 
must  also  see  that  the  property  is  protected  and  preserved, 
but  they  are  not  under  any  obligation  to  execute  the  trust. 
They  may  decline  the  office,  and  generally  the  court  will 
appoint  new  trustees  to  succeed  to  the  original  trustees.  If 
the  heirs  or  executors  continue  to  act  as  trustees,  they  will  be 
liable  for  no  past  breaches  of  trust,  but  only  for  breaches 
that  occur  under  their  own  management.^ 

§  345.  It  has  been  before  stated  that  a  general  assignment 
for  creditors  does  not  pass  a  trust  estate.  In  such  case  it 
requires  special  words  to  vest  the  estate  in  an  assignee.  So 
an  assignment  in  bankruptcy  of  all  the  trustee's  property 
does  not  pass  estates  which  the  bankrupt  holds  in  trust.^ 
If  the  bankrupt  by  a  breach  of  trust  has  converted  the  trust 
estate  into  other  property,  the  cestui  que  trust  may  follow 
it  into  the  hands  of  the  assignee,  so  far  as  he  can  identify  the 
particular  property  obtained  by  breach  of  the  trust.*  But  if 
the  trust  property  has  become  so  amalgamated  with  the 
general  mass  of  the  bankrupt's  estate  that  it  cannot  be  traced 
or  identified,  the  cestui  que  trust  must  prove  his  claim.'^  If 
an  assignee  should  get  possession  of  the  trust  estate,  and 
refuse  to  restore  it,  the  trustee,  though  a  bankrupt,  may 
maintain   a   suit  for  its  restoration,  or  the  cestui  que  trust 

1  Ante,  §  264;  Mansell  v.  Mansell,  Wilm.  36;  Cook  v.  Crawford,  13 
Sim.  91 ;  Hall  v.  Dewes,  Jac.  189;  Peyton  v.  Bury,  2  P.  Wms.  626;  Brad- 
ford i\  Belfield,  2  Sim.  264;  Cole  v.  Wade,  16  Ves.  45;  Sharp  v.  Sharp, 
2  B.  &  A.  405.     See  Townsend  v.  Wilson,  1  B.  &  A.  608. 

2  Baird's  App.,  3  W.  &  S.  459;  Schenck  v.  Schenck,  1  Gren.  Ch.  174; 
Hill  V.  State,  2  Ark.  604. 

3  Ante,  §  336;  Scott  v.  Siirman,  Willes,  402. 

*  Taylor  v.  Plumer,  3  M.  &  S.  562;  Ex  parte  Sayers,  5  Ves.  169. 
5  Ex  parte  Dnmas,  1  Atk.  232;  Ryall  v.  Rolle,  Id.  172;  Scott  v.  Sur- 
man,  Willes,  403. 

446 


CHAP.  XI.]  PROPERTIES    OP   THE    TRUST    ESTATE.  [§  346. 

may  have  a  bill  for  the  appointment  of  new  trustees,  and  the 
conveyance  of  the  property  to  them.i  But  if  a  bankrupt  trus- 
tee has  a  beneficial  interest  in  the  trust  property,  it  will 
pass  to  his  assignee ;  and  the  assignee  will  hold  the  bank- 
rupt's beneficial  interest  in  trust  for  his  creditors,  and  the 
remainder  of  the  property  in  trust  for  the  other  parties 
beneficially  interested. ^ 

§  346.  It  is  now  a  universal  rule  that  all  those  who  take 
under  the  trustee,  except  purchasers  for  a  valuable  consid- 
eration without  notice,  take  subject  to  the  trust,  and  they 
must  either  execute  the  trust  themselves,  or  convey  the  prop- 
erty to  new  trustees  appointed  by  the  court.  Thus  the  heir, 
executor,  administrator,  devisee,  and  the  assignee  by  deed 
or  in  bankruptcy,  are  bound  by  the  trust ;  so  are  those  who 
take  dower  or  curtesy  in  the  trust  estate,  or  a  creditor  who 
levies  an  execution  upon  it.  If  the  trust  estate  is  forfeited 
to  the  crown  or  the  State,  it  is  still  subject  to  the  trust ;  so  if 
it  escheats  upon  the  failure  of  heirs.  But  a  disseizor  is  not 
an  assignee  of  the  trustee ;  he  holds  a  wrongful  title  of  his 
own,  adversely  to  the  trust.  Tlie  cestui  que  trust  has  no 
remedy  in  such  case,  except  to  procure  the  trustee  to  bring 
an  action  upon  his  legal  title  to  recover  the  possession.  The 
cestui  que  trust  could  not  maintain  a  suit  in  equity  to  compel 
the  disseizor  to  hold  upon  the  same  trusts  as  the  trustee ; 
for  there  is  no  privity  between  the  disseizor  and  disseizee.^ 
The  only  remedy  of  the  cestui  que  trust  is  against  the  trustee ; 
and  if  he  refuses  to  bring  an  action  to  recover  the  estate, 
he  may  be  removed  and  a  new  trustee  appointed. 

1  Winch  V.  Keely,  1  T.  R.  619;  Carpenter  v.  Marnell,  3  B.  &  P. 
40. 

2  Carpenter  v.  Marnell,  3  B.  &  P.  40;  Parnham  v.  Hurst,  8  M.  &  W. 
743;  D'Arnay  v.  Chesneau,  13  M.  &  W.  800;  Leslie  v.  Guthrie,  1  Bing. 
N.  C.  697;  Boddington  v.  Castelli,  1  El.  &  Bl.  879. 

«  Finch's  Case,  4  Inst.  S'j;  Gilb-rt  on  Uses  by  Sugd.  249;  Reynolds  v. 
Jones,  2  Sim.  &  S.  206;  Turner  v.  Ruck,  22  Vin.  Ab.  21  ;  Doe  v.  Price, 
16  M.  &  W.  603.  But  the  ces^tui  que  trust  is  the  beneficial  owner,  and 
the  court  will  protect  him  in  an  entry  and  occupation  against  a  stranger. 
Oatman  v.  Barney,  46  Vt.  591. 

447 


§  347.]  MERGER.  [chap.  XI. 

§  347.  Where  the  legal  and  equitable  estate  in  the  same 
land  becomes  vested  in  the  same  person,  the  equitable  will 
merge  in  the  legal  estate  ;  for  a  man  cannot  be  a  trustee  for 
himself,  nor  hold  the  fee,  which  embraces  the  whole  estate, 
and  at  the  same  time  hold  the  several  parts  separated  from 
the  whole.^  But  in  order  that  this  maj  be  true,  the  two 
estates  must  be  commensurate  with  each  other ;  or  the  legal 
estate  must  be  more  extensive  or  comprehensive  than  the 
equitable.  The  equitable  fee  cannot  merge  in  a  partial  or 
particular  legal  estate.^  And  there  will  be  no  merger,  if  it  is 
contrary  to  the  intention  of  the  parties.^  If  A.  should  convey 
lands  to  B.  in  trust  for  C.  and  her  heirs,  and  C.  should  be  the 
heir  of  B.,  upon  the  death  of  B.  the  legal  title  would  descend 
to  C,  and  thus  both  the  legal  and  equitable  title  would  meet 
in  C. ;  but  if  C.  was  a  married  woman,  and  it  was  plainly  the 
intention  of  the  grantor  or  settlor,  to  be  gathered  from  the 
whole  instrument,  that  the  trust  should  not  cease,  but  con- 
tinue an  active  trust,  the  court  would  not  allow  the  equitable 

1  Wade  V.  Paget,  1  Bro.  Ch.  363  ;  Selby  v.  Alston,  3  Ves.  339;  Philips 
V.  Brydges,  Id.  126;  Goodright  v.  Wells,  Doug.  771;  Finch's  Case,  4 
Inst.  85;  Harmood  v.  Oglander,  8  Yes.  127;  Creagh  v.  Blood,  3  Jones  & 
L.  133;  James  r.  Morey,  2  Cow.  246;  Mason  v.  Mason,  2  Sandf.  Ch.  433, 
James  v.  Johnson,  6  Johns.  Ch.  417;  Cooper  v.  Cooper,  1  Halst.  Ch.  9  ; 
Healy  r.  Alston,  25  Miss.  190 ;  Brown  v.  Bontee,  10  Sm.  &  M.  268;  Lewis 
r.  Starke,  Id.  128;  Nicholson  v  Halsey,  1  Johns.  Ch.  422;  Butler  v.  God- 
ley,  1  Dev.  94 ;  Hopkinson  v.  Dumas,  42  N.  H.  306 ;  Gardner  v.  Astor,  3 
Johns.  Ch.  53;  Downes  v.  Grazebrook,  3  Mer.  208;  Ayliff  v.  Murray,  2 
Atk.  59;  Wills  v.  Cooper,  1  Dutch.  N.J.  137;  Harbergham  v.  Vincent, 
2  Ves.  Jr.  204. 

2  Selby  V.  Alston,  3  Ves.  339 ;  Hunt  v.  Hunt,  14  Pick.  374  ;  Donalds 
V.  Plumb,  8  Conn.  453  ;  James  v.  Morey,  2  Cow.  284;  Goodright  v.  Wells, 
Doug.  771;  Philips  v.  Brydges,  3  Ves.  125;  Robinson  v,  Cuming,  t.  Tal- 
bot, 164;  1  Atk.  475;  Boteler  v.  AUington,  1  Bro.  Ch.  72;  Buchanan  r. 
Harrison,  1  Jon.  &  Hen.  662 ;  Merest  v.  James,  6  Madd.  118  ;  Haberghara 
r.  Vincent,  2  Ves.  Jr.  204. 

3  Gardner  v.  Astor,  3  Johns.  Ch.  53;  James  v.  Morey,  2  Cow.  246; 
Mechanics'  Bank  v.  Edwards,  1  Barb.  S.  C.  272;  Starr  v.  Ellis,  6  Johns. 
Ch.  393;  Donald  v.  Plumb,  8  Conn.  453;  Den  v.  Vanness,  5  Halst.  102; 
Hunt  V.  Hunt,  14  Pick.  374;  Nurse  v.  Yerwarth,  3  Swanst.  608;  Saunders 
V.  Bournford,  Finch,  424 ;  Thorn  v.  Newman,  3  Swanst.  603 ;  Mole  v.  Smith, 
Jac.  490. 

448 


CHAP.  XI.]  MERGER.  [§  348. 

estate  to  merge  in  the  legal,  but  a  new  trustee  would  be 
appointed  to  take  the  legal  title.^  Of  course,  in  law  the 
estates  will  merge  wherever  the  interests  meet ;  but  courts  of 
equity  will  preserve  the  estates  separate,  where  the  rights  or 
interests  of  the  parties  require  it.  If  the  trustee  acquires  the 
equitable  interest  by  any  breach  of  his  duty,  or  by  fraud, 
courts  will  not  allow  it  to  merge.^  So  if  there  are  intervening 
heirs  who  would  be  squeezed  out,  the  estates  will  not  merge.^ 
So  if  the  legal  estate  comes  to  the  cestui  que  trust  by  a  con- 
veyance which  turns  out  to  be  void,  there  will  be  no  merger.* 
Whether  charges  upon  an  estate,  as  mortgages,  will  merge  in 
the  legal  title,  upon  being  paid  off,  depends  upon  the  intention 
of  the  parties,  and  frequently  upon  the  interests  and  equities 
between  them.^  If  a  leasehold  is  held  by  a  wife  in  her  right, 
but  is  in  the  occupation  of  her  husband,  and  he  purchases  the 
reversion,  there  will  be  no  merger.^ 

§  348.  Thus  if  a  tenant  for  life  pays  off  a  charge  or  incum- 
brance upon  an  estate,  it  will  be  considered  that,  as  his  inter; 
est  ceases  with  his  life,  he  could  never  have  intended  that  the 
charge  should  be  extinguished,  and  not  survive  for  the  benefit 

1  Gardner  v.  Astor,  3  Johns.  Ch.  53;  James  v.  Morey,  2  Cow.  246; 
Mechanics'  Bank  v.  Edwards,  1  Barb.  S.  C.  272;  Starr  v.  Ellis,  6  Johns. 
Ch.  393;  Donald  v.  Plumb,  8  Conn.  4.53,-  Den  v.  Vanness,  5  Halst.  102; 
Hunt  V.  Hunt,  14  Pick.  374  ;  Nurse  v.  Yerwarth,  3  Swanst.  608;  Saunders 
V.  Bournford,  Finch,  424 ;  Thom  v.  Newman,  3  Swanst.  603 ;  Mole  v.  Smith, 
Jac.  490. 

2  1  Spence,  Eq.  Jur.  572. 

8  Lewis  V.  Stark,  10  Sm.  &  M.  128. 

*  Elliott  V.  Armstrong,  2  Blackf.  208 ;  Buchanan  v.  Harrison,  1  John. 
&  H.  662;  Brandon  v.  Brandon,  31  L.  J.  Ch.  47. 

5  Hunt  V.  Hunt,  14  Pick.  374;  Johnson  v.  Webster,  4  De  G.,  M.  &  G. 
474  ;  Tyrwhitt  v.  Tyrwhitt,  32  Beav.  244 ;  Morley  v.  Morley,  25  L.  J.  Ch. 
1;  Compton  v.  Oxenden,  2  Ves.  Jr.  264;  Forbes  v.  Moffatt,  18  Ves.  390; 
Horton  v.  Smith,  4  K.  &  J.  630;  Tomlinson  v.  Steers,  3  Mer.  210;  Smith 
V.  Phillips,  1  Keen,  694;  Medly  v.  Horton,  14  Sim.  226;  Brown  v.  Stead, 
5  Sim.  535;  Parry  v.  Wright,  1  S.  &  S.  369;  5  Russ.  542;  Mocatta  v. 
Murgatroyd,  1  P.  W.  193;  Greswold  v.  Marsham,  2  Ch.  Ca.  170;  Garnett 
V.  Armstrong,  2  Conn.  &  Laws.  4.58;  Watts  v.  Symes,  16  Sim.  646;  Cooper 
V.  Cartwright,  1  John.  679. 

«  Clark  V.  Tennison,  33  Md.  85. 
VOL.  I. —  29  449 


§  348.]  PROPERTIES    OF    THE    TRUST    ESTATE.  [CHAP.  XI. 

of  his  representatives.^  And  the  same  rule  applies,  though 
the  tenant  for  life  may  be  ultimately  entitled  to  the  reversion 
in  fee,  subject  to  remainders  which  fail.^  Even  in  this  case, 
evidence  may  be  given  that  the  tenant  for  life  intended  the 
charge  to  be  merged  and  extinguished.^  A  tenant  in  tail  in 
possession  has  the  power  to  convert  the  estate  into  an  absolute 
fee ;  therefore,  if  he  pays  off  an  incumbrance,  the  presump- 
tion is  that  he  intended  it  to  merge.*  But  if  the  estate  of  the 
tenant  in  fee-simple  or  in  tail  is  subject  to  any  executory  lim- 
itations that  may  defeat  their  estate,  or  if  they  pay  off  the 
charges  under  any  mistake  as  to  their  title,  the  court  would 
not  allow  the  charges  to  merge  or  become  extinguished.^  But 
if  a  person  pays  or  takes  up  the  charges  or  incumbrances, 
and  afterwards  the  legal  title  should  come  to  him,  the  charges 
would  merge.^  So  if  a  person,  having  the  legal  title  and  hold- 
ing charges  and  incumbrances  upon  the  estate,  conveys  in  fee 
or  in  mortgage,  and  makes  no  mention  of  the  charges  or  in- 
cumbrances, they  would  merge  as  between  the  grantor  and 
grantee."  Generally,  where  the  owner  in  fee-simple  pays  off  a 
charge  or  incumbrance  on  an  estate,  the  presumption  of  law 
is  that  such  charge  or  incumbrance  will  merge  ;  ^  but  if  he 
owns  only  a  partial    interest,   the    presumption   is  that  the 

1  Pittr.  Pitt,  22  Beav.  294,  Burrell  r.  Egremont.  7  Reav.  205;  Rediuc:- 
ton  V.  Reding'ton,  1  B.  &  B.  lo9;  Faulkner  v.  Daniel,  3  Hare,  217;  State 
V.  Kock,  47  Mo.  582. 

2  Wyndham  v.  Egremont,  Arab.  753;  Trevor  v.  Trevor,  2  Myl.  &  K. 
675. 

3  Astley  V.  Milles,  1  Sim.  298. 

*  St.  Paul  V.  Dudley,  15  Ves.  173;  Buckinghamshire  v.  Hobart,  3  Swanst. 
199;  Jones  v.  Morgan,  1  Bro.  Ch.  206. 

5  Drinkwater  v.  Combe,  2  S.  &  S.  840;  Shrewsbury  v.  Shrewsbury,  3 
Bro.  Ch.  120;  1  Yes.  Jr.  227;  Wigsell  v.  Wigsell,  2  S.  &  S.  364;  Horton 
V.  Smith,  4  K.  &  J.  624;  Buckinghamshire  v.  Hobart,  3  Swanst.  199; 
Kirkham  v.  Smith,  1  Ves.  528. 

6  Horton  v.  Smith,  4  K.  &  J.  624;  Trevor  v.  Trevor,  2  Myl.  &  K.  675; 
Wigsell  V.  Wig.sell,  2  S.  &  S.  364. 

7  Tyler  v.  Lake,  4  Sim.  351 ;  Johnson  v.  Webster,  4  De  G.,  ^l.  &  G.  474. 

8  Hood  V.  Phillips,  3  Beav.  513;  Pitt  v.  Pitt,  22  Beav.  294;  Gunter  v. 
Gunter,  23  Beav.  571;  Swinfen  v.  Swinfen,  29  Be.v.  199;  Tyrwhitt  r. 
Tyrwhitt,  32  Beav.  244. 

450 


CHAP.  XI.]  SURRENDER.  [§  349. 

charge  was  to  be  kept  on  foot.^  Mere  possession  of  the  prop- 
erty by  the  trustee  or  by  the  cestui  que  trust  is  no  evidence  of 
a  merger.^ 

§  349.  Sometimes  where  an  estate  has  been  vested  by  deed 
or  will  in  trustees  for  a  cestui  que  trust,  whether  it  is  a  fee  or 
some  lesser  estate,  the  law  will  presume  that  the  trustees  have 
surrendered,  conveyed,  or  assigned  the  estate,  whatever  it  was, 
to  the  cestui  que  trust?  This  presumption  of  law  is  necessary 
for  the  quieting  of  titles.  If  such  presumptions  could  not  be 
made,  some  titles  would  remain  forever  imperfect.  There 
might  be  an  outstanding  legal  estate,  which  would  at  any  time 
defeat  the  tenant,  if  there  could  not  be  a  presumption  of  a 
conveyance  or  surrender  by  the  trustee  to  the  cestui  que  trust. 
This  presumption  is  somewhat  different  from  that  prescrip- 
tion by  which  one  tenant  by  an  open,  peaceable,  and  adverse 
occupation,  under  a  claim  of  right,  obtains  the  legal  title  as 
against  another  person.  In  such  case,  after  a  definite  period 
of  time,  a  grant  or  conveyance  is  presumed  in  favor  of  the 
tenant  in  occupation,  though  it  may  be  well  enough  under- 
stood that  no  such  grant  or  conveyance  was  ever  made.  So 
there  may  be  a  presumption  that  a  trustee  has  conveyed  to 
the  cestui  que  trust,  though  such  presumption  may  not  always 
be  founded  on  a  belief  that  such  conveyance  was  actually 
made.*  There  is  another  difficulty  between  trustees  and  cestuis 
que  trust  which  does  not  exist  between  adverse  claimants  of 
the  same  legal  title.     The  titles  of  the  trustee  and  cestui  que 

1  Price  V.  Gibson,  2  Eden,  115;  Swinfen  v.  Swinfen,  29  Beav.  19f) ; 
Coinpton  V.  Oxenden,  2  Ves.  Jr.  203;  Donisthorpe  v.  Porter,  2  Eden,  162. 

2  Broswell  v.  Downs,  11  Fla.  62. 

8  England  v.  Slade,  4  T.  R.  682;  Wilson  v.  Allen,  1  J.  &  W.  611; 
Noel  V.  Bewley,  3  Sim.  103;  Cooke  v.  Salton,  2  S.  &  S.  154;  Hillary  v. 
Waller,  12  Ves.  239;  Lade  v.  Holford,  Bull.  N.  P.  110;  Doe  v.  Hikler,  2 
B.  &  A.  782;  Emery  i'.  Grocock,  6  Madd.  54;  Townshend  ?'.  Champer- 
nown,  1  Y.  &  J.  583;  Goodtitle  v.  Jones,  7  T.  R.  47;  Doe  v.  Sybourn,  Id. 
2;  Moore  v.  Jackson,  4  W^end.  59;  Dutch  Church  v.  Mott,  7  Paige,  77; 
Jackson  v.  Moore,  13  Johns.  513;  1  Green.  Cruise,  Dig.  412;  Matthews  v. 
Ward,  10  Gill  &  J.  443;  Jackson  v.  Pieice,  2  Johns.  226;  Sinclair  v.  Jack- 
son, 8  Cow.  .543. 

*  Hillary  v.  Waller,  12  Yes.  252. 

451 


§  351.]  PROPERTIES    OF   THE   TRUST    ESTATE.  [CHAP,  XI. 

trust  are  not  adverse  to  each  other,  and  generally  the  posses- 
sion of  the  cestui  que  trust  is  the  possession  of  the  trustee ; 
at  any  rate  it  is  generally  consistent  with  the  legal  title  of  the 
trustee.  Therefore,  mere  length  of  time  as  between  trustee 
and  cestui  que  trust  will  afford  no  ground  for  a  presumption 
of  a  conveyance  or  surrender  from  the  trustee  to  the  cestui 
que  trusty  as  cestuis  que  trust  may  occupy  the  estate  indefi- 
nitely under  a  merely  equitable  title. 

§  350,  This  presumption  has  been  discussed  at  length  in 
several  cases,  and  some  difference  of  opinion  has  been  ex- 
pressed ;  2  but  it  seems  now  to  be  well  settled  that  three 
circumstances  must  concur  in  order  to  raise  the  presumption 
of  a  conveyance  or  surrender  by  the  trustee  to  the  cestui  que 
trust:  (1)  It  must  have  been  the  duty  of  the  trustee  to 
make  the  conveyance ;  (2)  There  must  be  some  sufficient 
reason  to  support  the  presumption ;  (3)  The  presumption 
must  be  in  support  of  a  just  title,  and  not  to  defeat  it. 

§  851.  Thus  where  the  cestui  que  trust  becomes  absolutely 
entitled  to  tlie  whole  beneficial  interest  in  the  trust  estate, 
and  the  active  duties  of  the  trustee  have  ceased,  the  statute 
of  uses  generally  executes  the  legal  title  of  the  trustee  to  the 
cestui  que  trust,  and  he  obtains  the  legal  as  well  as  the  bene- 
ficial estate.  But  there  are  cases  where  the  active  duties 
of  the  trustee  having  ceased,  the  legal  title  does  not  pass 
without  a  conveyance.  In  such  cases  it  is  clearly  the  duty 
of  the  trustee  to  convey  the  legal  title  to  the  cestui  que  trust, 
or  to  such  person  as  he  shall  appoint.^  Therefore,  if  the 
beneficial  owner  has  been  a  long  time  in  possession,  dealing 

1  Keene  v.  Deardon,  8  East,  263;  Goodson  v.  Ellison,  3  Russ.  5S8; 
Hillary  v.  Waller,  12  Ves.  251;  1  Sugd.  V.  &  P.  350,  470;  Flournoy  v. 
Johnson,  7  B.  Mon.  694;  Doe  v.  Langdon,  12  Q.  B.  719. 

'■^  Lade  v.  Holford,  Bull.  N.  P.  110;  Doe  v.  Sybourn,  7  T.  R,  2;  Good- 
title  17.  Jones,  Id.  49;  Doey.  Read,  8  T.  R.  118;  see  note,  1  Green.  Cruise, 
410  ;  2  Pow.  on  Mort.  491. 

3  Langley  v.  Sneyd,  1  S.  &  S.  45;  Carteret  v.  Carteret,  2  P.  Wms.  134; 
Angier  v.  Stannard,  3  Myl.  &  K.  571;  England  v.  Slade,  4  T.  R.  682; 
Goodson  L'.  Ellison,  3  Russ.  583. 

452 


CHAP.  XI.]  SURRENDER,  [§  351. 

with  the  estate  in  every  respect  as  his  own,  it  will  be  pre- 
sumed that  tlie  trustee  performed  his  duty  and  conveyed  the 
legal  estate  to  the  proper  person.  As  where  a  mortgage  in 
fee  was  made  to  a  trustee  for  the  real  mortgagee,  and  the 
cestui  que  trust  or  real  mortgagee  took  a  conveyance  of  the 
equity  of  redemption,  and  ever  after  dealt  with  the  estate  as 
if  the  legal  fee  was  in  him,  a  conveyance  of  the  mortgage 
was  presumed  to  have  been  made  to  him  by  the  trustee.^ 
There  was  a  use  of  the  estate  in  this  case  for  one  hundred 
years.  Where  lands  were  conveyed  to  trustees  for  a  reli- 
gious society,  which  was  afterwards  incorporated,  it  was  held, 
after  the  use  of  the  land  for  one  hundred  and  forty  years  by 
the  incorporated  society,  that  a  conveyance  by  the  trustees 
might  be  presumed.^  So  where  several  persons  conveyed  to 
a  trustee  a  tract  of  land  for  the  purposes  of  a  partition  by  the 
trustee  conveying  back  to  each  person  his  share  in  severalty, 
as  set  forth  in  the  deed,  it  was  held,  after  an  occupation  of 
many  years  by  each  person  in  severalty  according  to  the  in- 
tended partition,  that  the  trustee  might  be  presumed  to  have 
conveyed. 3  Where  the  trustees  ai-e  to  convey  upon  a  certain 
event,  or  at  a  certain  time,  as  when  a  minor  becomes  twenty- 
one,  the  presumption  will  arise  after  a  much  shorter  lapse  of 
time.^  Thus,  where  trustees  w%re  to  convey  to  the  testator's 
son  immediately  on  his  coming  of  age,  the  son  became  of  age 
in  1788,  and  granted  a  long  lease  in  1789,  the  court  presumed 
a  conveyance  in  1792,  or  only  four  years  after  the  event,  there 
being  no  proof  of  an  actual  conveyance.  Lord  Kenyon  said 
"  there  was  no  reason  why  the  jury  should  not  presume  a 
conveyance  from  the  trustees.  They  were  bound  to  make 
one,  and  a  court  would  have  compelled  them  to  have  done  it 
if  they  had  refused.  It  is  rather  to  be  presumed  that  they 
did  their  duty.  And  as  to  time,  the  jury  may  be  directed  to 
presume  a  conveyance  and  surrender  in  much  less  time  than 

1  Noel  V.  Bewley,  3  Sim.  103. 

2  Dutch  Church  v.  Mott,  7  Paige,  77. 

*  Jackson  v.  Moore,  13  Johns.  513. 

*  Wilson  ('.  Allen,  IJ.  &  W.  611;  Hillary  v.  Waller,  12  Ves.  239;  Doe 
V.  Sybourn,  7  T.  R.  2. 

453 


§  354.]  PROPERTIES    OF   THE    TRUST    ESTATE.  [CHAP.  XI. 

twenty  years."  ^  So  where  tlie  direction  to  the  trustee  to 
convey  applies  to  only  a  part  of  the  estate,  the  court  may 
presume  a  conveyance  of  the  whole,  if  the  circumstances  re- 
quire or  warrant  such  presumption.^ 

§  352.  If  the  estate  was  originally  conveyed  to  trustees  for 
some  particular  purpose,  as  by  way  of  security  or  indemnity, 
or  to  raise  an  annuity  or  portion,  or  for  any  other  purpose, 
as  soon  as  the  purpose  is  accomplished,  the  trustees  become 
mere  dry  trustees,  and  it  is  their  duty  to  convey  the  estate 
to  the  beneficial  owner.^  Where,  from  lapse  of  time  joined 
with  other  circumstances,  there  is  a  moral  certainty  that  the 
purposes  of  the  trust  have  all  been  accomplished,  the  court 
will  act  upon  the  certainty,  and  presume  a  reconveyance  al- 
though there  is  no  direct  proof  of  the  fact.* 

§  358.  Where  an  estate  is  vested  in  trustees  upon  an  ex- 
press trust,  they  must  retain  the  legal  title  until  the  trusts 
are  fully  executed.  Therefore,  no  conveyance  will  be  pre- 
sumed, so  long  as  the  trustees  have  any  duties  to  perform  , 
for  that  would  be  to  presume  a  breach  of  trust,  which  will 
never  be  presumed :  the  fact  must  be  proved  by  competent 
evidence.^  In  Aiken  v.  Smith,  the  court  presumed  that  the 
conveyance  was  made  at  the  death  of  the  tenant  for  life,  that 
being  the  time  fixed  for  the  conveyance,  and  the  time  when 
the  active  duties  of  the  trustees  ceased.^ 

§  354.  But  there  must  always  be  sufficient  reason  for  pre- 
suming a  reconveyance  or  surrender  by  the  trustee ;  that  is, 

1  England  v.  Slade,  4  T.  R.  682;  Man-  v.  Oilman,  1  Cold.  488. 

2  Hillary  v.  Waller,  12  Ves.  239. 

3  Hillary  v.  Waller,  12  Ves.  239 ;  Doe  v.  Sybourn,  7  T.  R.  2;  Cooke  v. 
Soltau,  2  S.  &  S.  15i;  Tix  parte  Holman,  1  Sugd.  V.  &  P.  509;  Emery  v. 
Grocock,  6  Madd.  54;  Doe  v.  Wright,  2  B.  &  A.  710;  Bartlett  v.  Downes, 
3  B.  &  Cr.  616. 

«  Emery  v.  Grocock,  6  Madd.  54;  Hillary  v.  Waller,  12  Ves.  252. 

5  Beach  v.  Beach,  14  Vt.  28;  Doe  v.  Steaple,  2  T.  R.  684;  Keene  v. 
Deardon.  8  East,  248;  Flournoy  v.  Johnson,  7  B.  ]\Ion.  694. 

^  Aiken  v.  Smith,  1  Sneed,  304.     This  case  is  opposed  to  Rees  r.  Wil- 
liams, 2  M.  &  W.  749. 
454 


CHAP.  XI.]  SURRENDER,  [§  355. 

there  must  be  some  evidence  of  such  a  conveyance,  or  some 
evidence  upon  which  the  presumption  of  the  conveyance  may 
be  founded.  The  mere  fact  that  the  trustee  was  to  convey 
upon  the  execution  of  the  trust,  or  upon  the  happening  of  a 
certain  event,  is  not  enough.  There  must  be  some  circum- 
stance from  which  it  may  be  reasonably  concluded  that  he  did 
in  fact  convey.  Mere  length  of  time  is  not  enough.  Courts 
have  refused  after  the  lapse  of  one  hundred  and  twenty  years 
to  presume  a  reconveyance,  when  there  were  no  intermediate 
transactions  to  give  force  to  the  length  of  time ;  ^  for  the  pos- 
session during  all  that  time  may  not  be  inconsistent  with  the 
trustee's  title.^  However,  great  lapse  of  time  is  an  important 
circumstance ;  and  the  fact  that  it  was  the  duty  of  the  trus- 
tees to  convey  is  another  important  circumstance.  Very 
slight  circumstances  added  to  these  will  be  sufficient  to  jus- 
tify a  court  or  jury  in  presuming  a  conveyance ;  and  a  con- 
veyance may  be  presumed  where  the  estate  has  been  dealt 
with  by  the  beneficial  owner  in  a  manner  in  which  reasonable 
men  do  not  deal  with  their  estates,  unless  they  are  the  legal 
as  well  as  beneficial  owners.^ 

§  355.  It  is  further  said  that  the  purpose  of  the  presump- 
tion must  be  to  prevent  a  just  title  from  being  defeated  by 
mere  matter  of  form.*  The  presumption  is  a  shield  for 
defence  and  not  a  sword  for  attack,  as  was  said  of  another 
principle  of  law.  As  the  presumption  was  introduced  for 
the  security  of  estates  and  the  protection  of  innocent  pur- 
chasers, it  cannot  be  set  up  to  eject  them  from  their  estates ; 
and  therefore  the  presumption  will  be  made  only  in  favor  of 
the  person  in  whom  the  beneficial  title  is  clearly  vested  for 

^  Goodright  v.  Swymmer,  1  Kenyon,  385;  Goodson  v.  Ellison,  3  Russ. 
583;  Langley  v.  Sneyd,  1  S.  &  S.  45;  Doe  v.  Lloyd,  Mathews  on  Presump- 
tions, 215. 

2  Ibid.  Keene  v.  Deardon,  8  East,  363;    Hillary  v.  Waller,  12  Ves.  250. 

3  Garrard  v.  Tuck,  8  C.  B.  248  ;  Cottrell  v.  Hughes,  15  C.  B.  532; 
Hillary  v.  Waller,  12  Ves.  239;  Wilson  v.  Allen,  IJ.  &  W.  611. 

4  Lade  v.  Holford,  Bull.  N.  P.  110;  Doe  v.  Sybourn,  7  T.  E.  2;  Good- 
title  V.  Jones,  7  T.  R.  47. 

455 


§  356.]  PROPERTIES   OF   THE   TRUST    ESTATE.  [CHAP.  XI. 

the  time  being,  whatever  may  be  the  extent  of  his  equitable 
interest.^  So  it  was  not  allowed  to  be  set  up  in  favor  of  a 
defendant  who  showed  no  title  but  a  mere  naked  possession, 
which  might  have  been  obtained  by  a  disseizin  of  the  bene- 
ficial owner.2  And  where  two  litigants  both  claimed  to  be 
the  beneficial  owners,  a  surrender  of  an  outstanding  legal 
estate  or  term  was  not  presumed,  lest  either  obtaining  it 
should  defeat  the  other  without  regard  to  the  merits  of  his 
beneficial  title.^ 

§  356.  In  England,  there  was  a  system  of  conveyancing  by 
which  outstanding  terms  were  made  to  attend  the  legal  title 
and  protect  it.  Much  litigation  and  discussion  has  been  had 
over  these  terms,  their  merging  in  the  legal  title,  and  their 
presumed  surrender.  They  have  very  little  importance  in 
this  country,  and  the  statement  of  the  law  concerning  them 
is  not  deemed  necessary.* 

1  Doe  V.  Cook,  6  Bing.  179;  Tenny  v.  Jones,  10  Bing.  75;  Bartlett  v. 
Downes,  8  B.  &  Cr.  616;  Xoel  v.  Bewley,  3  Sim.  103  ;  Wilson  v.  Allen,  1 
J.  &W.  611. 

2  Doe  V.  Cook,  6  Bing.  179;  England  v.  Slade,  4  T.  R.  682;  Doe  r. 
Sybonrn,  7  T.  R.  2. 

3  Doe  V  Wright,  2  B.  &  A.  710. 

*  See  Hill  on  Trustees,  pp.  253-263. 


456 


CHAP.  XII.]  LEGAL   AND   EQUITABLE   ESTATES.  [§  357. 


CHAPTER    XII. 

EXECUTORY    TRUSTS. 

§§  357-359.   Nature  of  an  executory  trust.     The  rule  in  Shelley's  case. 

§  360.   Distinction  between  marriage  articles  and  wills. 

§  361.   Construction  of  marriage  articles  and  their  correctioa. 

§  362.  Where  strict  settlements  will  not  be  ordered. 

§§  363,  364.     Settlement  of  personal  property. 

§  365.  Construction  of  marriage  settlements. 

§  368.  Inducements  for  marriage. 

§  366.    Executory  trusts  under  wills. 

§  367.  Who  may  enforce  the  execution  of  executory  trusts. 

§§  369,  370.     Construction  of  executory  trusts  under  wills. 

§  371.  The  words  "  heirs  of  the  body  "  and  "  issue." 

§  372.    When  courts  will  reform  executory  trusts. 

§  373.    How  courts  will  direct  a  settlement  of  personal  chattels. 

§  374.   Whether  courts  will  order  a  settlement  in  joint-tenancy. 

§  375.   What  powers  the  court  will  order  to  be  inserted  in  a  settlement. 

§  376.    Settlement  will  be  ordered  cy pr'es  the  intention. 

§  357.  It  is  a  fundamental  proposition  that  equitable  es- 
tates are  governed  by  the  same  rules  as  legal  estates,  otherwise 
inextricable  confusion  would  ensue.^  If  there  was  one  rule 
on  the  equity  side,  and  another  on  the  law  side  of  courts, 
there  would  be  no  certainty  or  uniformity  of  interpretation  or 
construction.  Thus  at  common  law  a  grant  to  A.  for  life, 
remainder  to  the  heirs  of  his  body,  vested  an  estate  in  fee-tail 
in  A.,  which  he  could  bar,  and  cut  off  the  remainder.  The 
same  rule  was  applied  to  executed  trusts.  Thus  if  land  is 
given  to  A.  and  his  heirs  in  trust  for  B.  for  life,  remainder  to 
the  heirs  of  his  body,  B.  takes  an  equitable  fee-tail ;  ^  for  the 

1  Frye  v.  Porter,  1  Mod.  300;  Price  v.  Sisson,  2  Beas.  168;  Cowper  v. 
Cowper,  2  P.  Wms.  753  ;  Burgess  v.  Wheate,  1  Wm.  Black.  123 ;  Gushing 
V.  Blake,  30  N.  J.  Eq.  689. 

2  This  illustration  states  the  law  only  in  States  where  the  rule  in  Shel- 

457 


§  357.]  EXECUTORY   TRUSTS.  [CHAP.  XII. 

same  rules  apply  to  the  two  species  of  estate.^  Therefore 
where  technical  words  are  used  in  the  creation  of  an  executed 
trust  estate,  they  will  be  taken  in  their  legal  technical  sense,^ 
though  Lord  Hardwicke  once  added  this  qualification,  "  unless 
the  intention  of  the  testator  or  author  of  the  trust  plainly 
appeared  to  the  contrary."^  But  this  qualification  has  been 
time  and  again  overruled,  and  it  is  now  an  established  canon 
that  a  limitation  in  trust,  perfected  and  declared  by  the 
settlor,  shall  have  the  same  construction  as  in  the  case  of  an 
executed  legal  estate.^  But  while  technical  words  receive 
their  technical  meaning  in  equitable  as  well  as  legal  estates, 
technical  words  are  not  always  necessary  to  create  and  limit 
equitable  estates  in  fee.  Thus  an  equitable  fee  may  be 
created  in  a  deed  without  the  word  "  heirs,"  and  an  equitable 
entail  without  the  words  "  heirs  of  the  body,"  if  the  words 
used  in  their  popular  sense  are  equivalent  to  the  technical 
words,  or  if  the  intention  is  sufficiently  expressed  and  clear.^ 
Thus  if  an  estate  is  devised  to  A.  and  his  heirs  in  trust  for  B. 
without  other  limitations,  B.  will  take  an  equitable  fee  ;  for 
it  is  plain  that  B.  is  to  take  an  equitable  estate  as  large  as  the 
legal  estate  that  passed  to  A.  and  his  heirs,  which  is  a  legal 
fee.^  But  if  an  estate  is  conveyed  by  deed  to  A.  and  his  heirs 
in  trust  for  the  grantor  for  life,  remainder  for  his  children, 

ley's  case,  as  it  is  called,  is  in  force.  In  States  where  the  rule  is  abrogated 
by  statute,  those  who  take  in  remainder  under  the  limitation,  take  as  pur- 
chasers, and  the  same  rule  applies  to  equitable  estates. 

1  Noble  V.  Andrews,  37  Conn.  346. 

2  Wriffht  V.  Pearson,  1  Eden,  125;  Bale  v.  Coleman,  8  Vin.  268;  Jer- 
voise  V.  Northumberland,  1  J.  &  W.  571 ;  McPberson  v.  Snowdon,  19  Md. 
197. 

8  Garth  v.  Baldwin,  2  Ves.  655. 

4  Brydges  v.  Brydges,  3  Ves.  Jr.  125;  Austen  v.  Taylor,  1  Eden,  367  ; 
Glenorchy  v.  Bosville,  Ca.  t.  Talb.  19;  Synge  v.  Hales,  2  B.  &  B.  507; 
Wright  V.  Pearson,  1  Eden,  125.  But  see  Cushing  v.  Blake,  30  N.  J.  Eq. 
389;  Carter  v.  Montgomery,  2  Tenn.  Ch.  216. 

5  Shep.  Touch    by  Preston,  106. 

«  Moore  v.  Cleghorn,  10  Beav.  423;  12  Jur.  591;  Knight  v.  Selby,  3 
Man.  &  Gr.  92;  Doe  v.  Cafe,  7  Exch.  675;  Watkins  v.  Weston,  32  Beav. 
238;  McCUntock  v.  Irving,  10  Tr.  Ch.  481  ;  Brenan  v.  Boyne,  16  Ir,  Ch. 
87;  Bettv  r.  Elliott,  Id.  110  n. ;  Re  Bayley,  Id.  215. 

458 


CHAP.  XII.]  LEGAL   AND   EQUITABLE   ESTATES.  [§  358. 

without  the  word  '•  heirs,"  the  children  take  an  estate  for  life 
only,  in  analogy  to  the  rules  of  law.^ 

§  358.  The  rule  in  Shelley's  case  was  never  a  rule  of  inten- 
tion, or  of  construction  to  reach  and  carry  out  the  settlor's 
intention  ;  but  it  was  established  as  an  absolute  rule  of  prop- 
erty to  obviate  certain  difficulties  that  would  arise  in  relation 
to  tenures,  if  certain  persons  to  whom  property  was  limited 
were  allowed  to  take  as  purchasers,  and  not  by  descent.'-^  It 
is  notorious  that  the  rule  disappointed  the  intention  of  settlors 
in  most  cases,  and  gave  an  absolute  disposal  of  the  inheri- 
tance to 'the  first  taker,  where  the  settlor  intended  that  such 
first  taker  should  have  only  an  estate  for  life.^    As  trusts  are 

1  Overton  v.  Halliday,  U  Beav.  467;  15  Beav.  480;  16  Jur.  71;  Lucas 
V.  Brandieth,  28  Beav.  274;  Tatham  v.  Vernon,  29  Beav.  604;  Nelson  v. 
Davis,  35  Ind.  474. 

2  Doebler's  App.,  64  Pa.  St.  9. 

8  For  these  reasons  the  rule  is  now  abolished  in  many  of  the  States  by 
statute.  The  proposition  of  the  text,  however,  should  be  read  in  the 
light  of  the  remarks  of  Agnew,  J.,  in  Yarnall's  App.,  70  Pa.  St  340  : 
"  In  regard  to  wills  the  cases  show  that  tecluiical  phrases,  as  well  as  forms 
of  expression  decided  in  other  cases,  are  not  permitted  to  overturn  the 
intent  of  the  testator,  when  that  intent  is  clearly  ascertained  to  be  dif- 
ferent in  the  will  under  examination  by  the  court.  This  broad  principle 
needs  no  citation  to  support  it,  for  it  is  founded  on  the  universal  rule  that 
the  intention  of  the  testator  is  the  guide  for  the  interpretation  of  wills. 
The  rule  in  Shelley's  case  is  only  an  apparent  not  a  real  exception  to  this 
statement.  It  sacrifices  a  particular  intent  only  to  give  effect  to  the  main 
intent  of  the  testator.  All  the  authorities  are  agreed  that  this  rule  has 
no  place  in  the  interpretation  of  wills,  and  takes  effect  only  when  the  in- 
terpretation has  been  first  ascertained.  Mr.  Fearne,  Contingent  Remain- 
ders, p.  188,  says,  '  Nothing  can  be  better  founded  than  Mr.  Hargrave's 
doctrine,  that  the  rule  in  Shelley's  case  is  no  medium  for  finding  out 
the  intention  of  the  testator;  that,  on  the  contrary,  the  rule  supposes 
the  intention  already  discovered  and  to  be  a  superadded  succession  to  the 
heirs,  general  or  special,  of  the  donee  for  life,  by  making  such  donee  the 
ancestor  terminus  or  stirps,  from  which  the  generation  of  posterity  or  heirs 
is  to  be  accounted ;  and  that  whether  the  conveyance  has  or  has  not  so 
constituted  an  estate  of  freehold,  with  a  succession  engrafted  on  it,  is  a 
previous  question  which  ought  to  be  adjusted  before  the  rule  is  thought 
of;  that,  to  resolve  that  point,  the  ordinary  rules  for  interpreting  the  lan- 
guage of  wills  ought  to  be  resorted  to ;  that  when  it  is  once  settled  that 

459 


§  358.]  EXECUTORY  TRUSTS.  [CHAP.  XII. 

wholly  independent  of  tenure,  tliey  ought  not  to  be  affected 
by  the  rule,  and  a  few  cases  have  seemed  to  indicate  that  they 
were  withdrawn  from  the  operation  of  it ;  ^  but  it  is  now 
established  that  the  same  rule  shall  apply  to  the  same  limita- 
tion whether  it  is  of  an  equitable  or  a  legal  estate.^  Thus  the 
rule  in  Shelley's  case  will  be  applied  to  a  gift  to  A.  and  his 
heirs  in  trust  for  B.  for  life,  and  remainder  to  his  heirs,  or 
heirs  of  his  body.  The  reason  of  the  rule  as  applied  to  legal 
estates  was  some  real  or  fancied  difficulty  concerning  tenures, 
or  to  bring  estates  one  generation  sooner  into  commerce,  or 
some  other  reason  ;  for  neither  judges  nor  text-writers  are 
agreed  upon  the  original  reasons  of  the  rule.  The  reason  of 
the  application  of  the  rule  to  limitations  of  trust  estates  is 
to  preserve  a  uniformity  of  the  law  in  relation  to  the  two 
kinds  of  estates  in  land.  This  leads  Mr.  Lewin  to  say,  that 
although  the  rule  is  not  equalhj  applicable  to  trust  estates,  yet 
it  is  equally  applied.^  But  the  rule  will  not  be  applied  to 
vest  a  fee  or  fee-tail  in  the  first  taker,  unless  the  word  "  heir  " 
is  used  as  a  term  of  succession,  and  not  as  a  mere  designatio 
personce.  Thus  if  an  estate  be  devised  to  A.  and  his  heirs  in 
trust  for  B.  for  life,  and  after  his  decease  in  trust  for  the  per- 

the  donor  or  testator  has  used  words  of  inheritance  according  to  their 
legal  import,  has  applied  them  intentionally  to  comprise  the  whole  line 
of  heirs  of  the  tenant  for  life,  and  has  really  made  him  the  terminus,  or 
ancestor  by  reference  to  whom  the  succession  is  to  be  regulated,  then 
comes  the  proper  time  to  inspect  the  rule  in  Shelley's  case.'  In  Hileman 
V.  Bouslaugh,  1  Plarris,  3.51,  Ch.  J.  Gibson  expresses  the  same  idea  in 
fewer  words,  thus:  'This  operates  only  on  the  intention  of  the  testator 
when  it  has  been  ascertained,  not  on  the  meaning  of  the  words  used  to 
express  it.  The  ascertainment  is  left  to  the  ordinary  rules  of  construction 
peculiar  to  wills;  but  when  this  is  ascertained,  is  found  to  be  within  the 
rule,  then  there  is  but  one  way;  it  admits  of  no  exceptions.'  " 

1  Withers  v.  Allgood,  cited,  and  Bagshaw  v.  Spencer,  1  Ves.  150. 

2  Garth  v.  Baldwin,  2  Ves.  646 ;  Wright  v.  Parsons,  1  Ed.  12S;  Brydges 
V.  Brydges,  3  Ves.  120;  Jones  v.  Morgan,  1  Bro.  Ch.  206;  Webb  r. 
Shaftesbury,  3  Myl.  &  K.  599;  Roberts  v.  Dixwell,  1  Atk.  610;  West, 
53G;  Britton  v.  Twining,  3  Mer.  175;  Spence  v.  Spence,  12  C.  B.  (n.  s.), 
199;  Coape  v.  Arnold,  2  Sm.  &  Gif.  311;  Noble  i'.  Andrews,  37  Conn. 
346;  Gushing  v.  Blake,  30  N.  J.  Eq.  689;  Sprague  v.  Sprague,  13  R.  I. 
703.  ^  Lewin  on  Trusts,  88  (5th  ed.). 

460 


CHAP.  XII.]         MEANING    OP    AN    EXECUTORY   TRUST.  [§  359. 

son  who  shall  then  be  his  heir,  B.  takes  an  estate  for  life  only, 
and  the  person  thus  designated  takes  the  estate  by  purchase.^ 
So  if  the  legal  estate  is  given  to  A.  in  trust  for  B.  for  life,  and 
the  legal  remainder  to  the  heirs  of  B.,  at  his  decease  the  rule 
cannot  apply  ;  for  the  legal  and  equitable  estate  cannot  so 
coalesce  that  B.  can  take  a  fee  either  legal  or  equitable.^ 

§  359.  But  in  order  that  technical  words  may  receive  their 
legal  signification,  and  in  order  that  the  rule  in  Shelley's  case 
may  be  applied  to  limitations  of  equitable  estates,  the  trusts 
must  be  executed  and  not  executory.^    All  trusts  are  executory 

*  Greaves  v.  Simpson,  10  Jur.  (n.  s.)  609. 

2  Collier  v.  McBean,  34  Beav.  426. 

'  Egei-ton  V.  Brownlow,  4  H.  L.  Ca.  210;  Rochford  v.  Fitzmaurice,  2 
Dr.  &  W.  20;  4  Ired.  Eq.  384 ;  Tatham  v.  Vernon,  29  Beav.  604  ;  Bacon's 
App.,  57  Pa.  St.  504.  This  distinction  was  very  early  established.  Bale 
I'.  Coleman,  8  Vin.  267;  Stamford  v.  Hobart,  3  Bro.  P.  C.  33;  Papillon 
V.  Voice,  2  P.  Wms.  471 ;  Glenorchy  v.  BosviJle,  t.  Talb.  3 ;  Gower  i\ 
Grosvenor,  Barn.  62;  Roberts  v.  Dixwell,  1  Atk.  607;  Baskerville  v.  Bas- 
kerville,  2  Atk.  279 ;  Woodhouse  v.  Haskins,  3  Atk.  24;  Read  i'.  Snell,  2 
Atk.  648;  Marryat  v.  Townley,  1  Ves.  102.  Several  of  these  cases  were 
decided  by  Lord  Hardwicke;  but  in  Bagshaw  v.  Spencer,  1  Ves.  152,  he 
nearly  confounded  and  denied  the  distinction.  In  Exel  v.  Wallace,  2 
Ves.  233,  however.  Lord  Hardwicke  explained  his  meaning,  and  desired 
to  have  it  remembered  that  he  did  not  mean  to  say  that  his  predecessors 
were  wrong.  The  distinction,  as  stated  in  the  text,  is  now  firmly  estab- 
lished both  in  England  and  the  United  States.  Barnard  v.  Proby,  2 
Cox,  8;  Wrights.  Pearson,  1  Eden,  125;  Austen  v.  Taylor,  Id.  366;  Stan- 
ley V.  Lennard,  Id.  95;  Lincoln  v.  Newcastle,  12  Ves.  227;  Jervoise  v. 
Xorthumberland,  1  J.  &  W.  570;  Deerhurst  v.  St.  Albans,  5  Madd.  233; 
2  CI.  &  Fin.  611;  Blackburn  v.  Stables,  2  V.  &  B.  369;  Douglass  v.  Con- 
greve,  1  Beav.  59;  4  Bing.  N.  C.  1 ;  5  Bing.  N.  C.  318;  Boswell  v.  Dillon, 
1  Dru.  297;  Neves  v.  Scott,  9  How.  211 ;  13  How.  268;  4  Kent,  Com.  218 
et  seq.;  Garner  v.  Garner,  1  Des.  444;  Porter  v.  Doby,  2  Rich.  Eq.  49; 
Dennison  v.  Goehring,  7  Barr,  177;  Findlay  v.  Riddle,  3  Binn.  1.52; 
Edmondson  v.  Dyson,  2  Kelly,  307;  Wiley  v.  Smith,  3  Kelly,  559;  Wood 
('.  Burnham,  6  Paige,  518;  26  Wend.  19;  Imlay  v.  Huntington,  20  Conn. 
162;  Berry  v.  Williamson,  11  B.  Mon.  251;  Home  v.  Lyethe,  4.  H.  &  J. 
434;  Loring  v.  Hunter,  8  Yerg.  31;  Bold  v.  Hutchinson,  5  De  G.,  M.  &  G. 
5.58.  Lord  Northington  said  that  the  words  "executory  trusts  "  seemed 
to  him  to  have  no  fixed  signification.  Lord  King  said  a  trust  was  execu- 
tory where  the  party  must  come  into  court  to  have  the  benefit  of  the  will. 

461 


§  359.]  EXECUTORY   TRUSTS.  [CHAP.  XII. 

in  one  sense  of  the  word  ;  that  is,  the  trustee  must  have  some 
duty,  either  active  or  passive,  to  perform,  so  that  the  statute 
of  uses  shall  not  execute  the  estate  in  the  cestui  que  trust,  and 
leave  nothing  in  the  trustee.^  But  such  is  not  the  meaning 
of  judges  when  they  speak  of  executed  trusts,  and  executory 
trusts.  These  words  refer  rather  to  the  manner  and  per- 
fection of  their  creation,  than  to  the  action  of  the  trustee  in 
administering  the  property.  Thus  a  trust  created  by  a  deed 
or  will,  so  clear  and  certain  in  all  its  terms  and  limitations 
that  a  trustee  has  nothing  to  do  but  to  carry  out  all  the  pro- 
visions of  the  instrument  according  to  its  letter,  is  called  an 
executed  trust.  In  these  trusts,  technical  words  receive  tlieir 
legal  meaning,  and  the  rules  applicable  to  legal  estates  gov- 
ern the  equitable  estates  thus  created.^  On  the  other  hand, 
an  executory  trust  is  where  an  estate  is  conveyed  to  a  trustee 
upon  trust,  to  be  by  him  conveyed  or  settled  upon  other 
trusts  in  certain  contingencies,  or  upon  certain  events,  and 
these  other  trusts  are  imperfectly  stated,  or  mere  outlines  of 
them  are  stated,  to  be  afterwards  drawn  out  in  a  formal  man- 
ner, and  are  to  be  carried  into  effect  according  to  the  final 
form  which  the  details  and  limitations  shall  take  under  the 
directions   thus  given.^     They  are  called  executory^  not  be- 

Mr.  Lewin  says  the  true  criterion  is  where  the  assistance  of  the  court  is 
necessary  to  complete  the  limitations,  p.  89.  Lord  Eldon  said  the  trust  was 
executory  where  the  testator  had  not  completed  the  devise,  but  had  left 
something  to  be  done,  so  that  the  court  must  look  to  the  intention.  Jer- 
voise  V.  Northumberland,  1  J.  &  W.  570.  Lord  St.  Leonards  distinguishes 
the  two  as  follows  :  "  Has  the  testator  been  what  is  called,  and  very  prop- 
erly called,  his  own  conveyancer?  Has  he  left  it  to  the  court  to  make  out, 
from  general  expressions,  what  his  intention  is,  or  has  he  so  defined  that 
intention  that  you  have  nothing  to  do  but  to  take  that  which  is  given  you, 
and  to  convert  them  into  legal  estates?  "  Egerton  v.  Brownlow,  4  H.  L. 
Ca.  210. 

1  Bagshaw  v.  Spencer,  1  Ves.  142 ;  Egerton  v.  Brownlow,  4  H.  L.  Ca. 
210;  Coape  v.  Arnold,  4  De  G.,  M.  &  G.  585. 

2  Wright  V.  Pearson,  1  Eden,  125;  Austen  o.  Taylor,  Id.  367;  4  Kent, 
Com.  220  ;  Jones  v.  Morgan,  1  Bro.  Ch.  206  ;  Jervoise  v.  Northumberland, 
IJ.  &  AV.  559;  Boswell  v.  Dillon,  1  Dru.  291. 

3  Austen  v.  Taylor,  1  Eden,  366;  Wright  v.  Pearson,  Id.  125;  Jervoise 
V.  Northumberland,  1  J.  &  W.  570;  Coape  v.  Arnold,  4  De  G.,  M.  &.  G. 

462 


CHAP.  XII.]        MEANING   OF   AN   EXECUTORY   TRUST.  [§  359. 

cause  the  trust  is  to  be  performed  in  tlie  future,  but  because 
the  trust  instrument  itself  is  to  be  moulded  into  form  and 
perfected  according  to  the  outlines  or  instructions  made  or 
left  by  the  settlor  or  testator.^  Thus  land  conveyed  to  A. 
upon  trust,  to  settle  the  same  upon  B.  and  C.  and  their  issue, 
in  the  event  of  their  marriage,  is  an  executory  trust?  There 
is  a  conveyance  or  settlement  to  be  executed  by  A.,  and  the 
form  or  terms  of  this  conveyance  or  settlement  is  to  be  deter- 
mined by  the  intention  of  the  original  grantor.^  When  this 
conveyance  or  settlement  is  finally  determined  and  made,  the 
trust  becomes  executed  in  the  sense  of  the  word  as  applicable 
to  this  distinction,  and  it  is  afterwards  governed  by  all  the 
rules  of  an  executed  trust.  The  difference  between  the  two 
kinds  of  trusts  is  this.  In  executed  trusts  the  rules  of  prop- 
erty govern,  and  not  the  intention  of  the  settlor,  if  it  is  con- 
trary to  the  law  or  rule  of  property.*  Thus  if,  in  an  executed 
trust,  an  estate  is  given  to  A.  in  trust  for  B.  for  life,  with 
remainder  to  his  heirs,  B.  takes  an  equitable  fee,  and  may  con- 
vey the  equitable  inheritance  and  exclude  his  heirs,  although 
it  is  perfectly  certain  that  the  settlor  intended  that  B.  should 
take  an  estate  for  his  life  only.^  But  an  executory  trust  is 
settled  and  carried  into  effect  according  to  the  intention  of  the 
settlor.^     Thus  if  an  estate  is  conveyed  to  A.  in  trust,  with 

585;  Xeves  v.  Scott,  9  How.  211;  Wiley  v.  Smith,  3  Kelly,  559;  Edmond- 
son  V.  Dyson,  2  Kelly,  307;  Wood  v.  Biirnham,  6  Paige,  518;  26  Wend. 
19;  Thompson  v.  Fisher,  L.  R.  10  Eq.  207;  Gushing  v.  Blake,  30  N.  J. 
Eq.  689. 

1  Ibid.  2  itid.  3  iHd. 

*  Choice  V.  Marshall,  1  Kelly,  97;  Schoonmaker  v.  Sheely,  3  Hill,'165; 
Kingsland  v.  Rapelye,  3  Edw.  2;  Brant  v.  Gelston,  2  John.  Ca.  384. 

6  Ibid. 

«  Wood  V.  Burnham,  6  Paige,  513;  26  Wend.  9;  4  Kent,  Com.  219;  1 
West,  Ch.  t.  Hardwicke,  512.  A  mere  direction  to  convey  will  not  render 
the  trust  executory,  if  the  directions  are  so  clear,  and  the  limitations  are 
so  certainly  defined,  that  there  is  nothing  to  do  but  to  convey  in  accord- 
ance with  them.  In  order  that  the  trust  may  be  executory,  there  must  be 
some  room  for  construction,  in  order  to  determine  the  intention  of  the 
settlor;  that  is,  to  determine  what  limitation  shall  be,  and  what  shall  not 
be,  introduced  into  the  conveyance  to  be  made.  Egerton  v.  Brownlow,  4 
H.  L.  Ca.  210;  Austen  v.  Taylor,  1  Ed.  361;  Wight  v.  Leigh,  15  Ves.  564; 

463 


§  360.]  EXECUTORY   TRUSTS.  [CHAP.  XII. 

instructions  to  convey  it  to  B.  for  life,  with  remainder  to  his 
heirs,  or  to  convey  it  in  trust  for  B.  for  life,  with  remainder 
to  his  heirs,  B.  takes  an  estate  for  life  only,  and  his  heirs  take 
by  purchase  at  his  decease,  if  such  appeared  to  be  the  inten- 
tion of  the  original  gift  or  grant.^ 

§  360.  In  the  history  of  executory  trusts,  still  another  dis- 
tinction has  been  drawn,  or  a  distinction  between  executory 
trusts  created  by  marriage  articles,  and  executory  trusts 
created  by  wills.  This  is  not  so  much  a  difference  between 
two  classes  of  executory  trusts,  as  it  is  a  difference  between 
the  rules  that  will  be  applied  to  the  interpretation  of  mar- 
riage articles  and  of  wills,  in  order  to  determine  the  intention 
of  the  settlor  or  the  testator.  Lord  Eldon  once  said,  that 
"  there  was  no  difference  in  the  execution  of  an  executory 
trust  created  by  will,  and  a  covenant  in  marriage  articles ; 
such  a  distinction  would  shake  to  their  foundation  the  rules 
of  equity."  ^  But  the  great  chancellor  afterwards  modified 
his  expression.^  And  certainly  there  is  no  difference  in  the 
execution  of  the  two  trusts  when  it  is  settled  what  they  are  ; 
but  there  is  a  difference  in  the  construction  of  marriage  arti- 
cles and  of  wills  in  order  to  reach  the  intention  of  the  creator 
of  the  trusts.  Tlius,  in  marriage  articles,  the  intention  of 
the  parties  to  the  articles  is  presumed  to  be  a  provision  for 
the  issue  of  the  marriage,  and  such  construction  is  given  to 
the  articles  as  to  carry  into  effect  this  presumed  intention  if 
possible;  while  in  construing  wills,  in  order  to  settle  the 
limitations  of    a   trust,  there  is    no  such    presumed  leading 

Graham  v.  Stewart,  2  Macq.  H.  L.  Ca.  205;  Herbert  v.  Blunden,  1  Dr.  & 
Walsh,  78:  East  v.  Twyford,  9  Hare,  713;  Doncaster  v.  Doncaster,  3  K. 
&  J.  26;  Stanley  v.  Stanley,  10  Ves.  491;  Glenorchy  v.  Bosville,  1  Lead. 
Ca.  Eq.  20.  and  notes;  McElroy  v.  McElroy,  113  Mass.  509  ;  Gushing  v. 
Blake,  30  N.  J.  Eq.  689. 

1  Ibid. ;  Savage  v.  Tyers,  L.  R.  8  Ch.  356. 

2  Lincoln  «.  Newcastle,  12  Ves.  230;  and  see  Turner  v.  Sargent,  17 
Beav.  519;  Reed  v.  Palmer,  53  Pa.  St.  379. 

3  Jervoise  v.  Northumberland,  1  J.  &  W.  574;  Townsend  v.  Mayer,  3 
Beav.  443;  Lassence  r.  Tierney,  1  Mac.  &  G.  551;  Gardner  v.  Stevens,  30 
L.  J.  Ch.  199;  Crofton  v.  Davies,  L.  R.  4  C  P.  1-59. 

464 


CHAP.  XII.]  MARRIAGE   ARTICLES.  [§  361, 

intention ;  or,  as  Sir  W.  Grant  put  it,  "  I  know  of  no  differ- 
ence between  an  executory  trust  in  marriage  articles  and  in 
a  will,  except  that  the  object  and  purpose  of  the  former  fur- 
nish an  indication  of  intention,  which  must  be  wanting  in  the 
latter.  Where  the  object  is  to  make  a  provision  by  the  set- 
tlement for  the  issue  of  a  marriage,  it  is  not  to  be  presumed 
that  the  parties  meant  to  put  it  in  the  power  of  the  father  to 
defeat  that  purpose,  and  appropriate  the  estate  to  himself. 
If,  therefore,  the  agreement  be  to  limit  an  estate  for  life  with 
remainder  to  the  heirs  of  the  body,  the  court  decrees  a  strict 
settlement  in  conformity  to  the  presumable  intention.  But 
if  a  will  directs  a  limitation  for  life  with  remainder  to  the 
heirs  of  the  body,  the  court  has  no  such  ground  for  decreeing 
a  strict  settlement."  ^ 

§  361.  Thus  if,  in  marriage  articles,  the  real  estate  of  the 
husband  or  of  the  wife  is  limited  to  the  heirs  of  the  body 
or  to  the  issue  '^  of  the  contracting  parties,  or  either  of  them, 
or  to  the  issue  of  the  body,  or  to  the  issue  and  their  heirs,^ 
so  that  the  words  and  limitations,  taken  in  their  legal  sense, 
would  enable  the  parents,  or  one  of  them,  to  defeat  this  pro- 
vision for  the  children,  equity  will  construe  the  articles  to 
mean  that  the  estate  is  limited  to  the  parents  for  life,  and 
the  children  will  take  at  the.  decease  of  their  parent  or  par- 
ents as  purchasers;  and  equity  will  decree  a  formal  settle- 
ment to  be  drawn  in  such  way  as  to  carry  out  this  purpose.* 

1  Blackburn  v.  Stables,  2  Ves.  &  B.  369;  Bale  v.  Coleman,  8  Vin.  267; 
Strafford  v.  Powell,  1  B.  &  B  25;  Synge  v.  Hales,  2  B.  &  B.  508;  Maguire 
V.  Scully,  2  Hog.  113;  Rochford  v.  Fitzmaurice,  1  Conn.  &  Laws.  173;  2 
Dr.  &  War.  18;  4  Jr.  Eq.  375;  Jervoise  v.  Northumberland,  1  J.  &  W. 
574 ;  Deerhurst  v.  St.  Albans,  5  Madd.  260. 

2  Dod  V.  Dod,  Arab.  274. 

3  Phillips  V.  James,  2  Dr.  &  Sm.  404. 

*  Handick  v.  Wilkes,  1  Eq.  Ca.  Ab.  393;  Gilb.  Eq.  114;  Trevor  v. 
Trevor,  1  P.  Wms.  622;  Rochford  v.  Fitzmaurice,  1  Conn.  &  Laws.  173; 
2  Dr.  &  War.  18;  4  Jr.  Eq.  375;  Cusack  v.  Cusack,  5  Bro.  P.  C.  116; 
Davies  v.  Davies,  4  Beav.  54;  Griffith  v.  Buckle,  2  Vern.  13;  Jones  v. 
Langton,  1  Eq.  Ca.  Ab.  392;  Stonor  v.  Curwen,  5  Sim.  269;  Barnaby  v. 
Griffin,  3  Ves.  206;  Home  v.  Barton,  19  Ves.  398;  Coop.  257;  22  L.  J. 
(x.  s.)  Ch.  225. 

VOL.  I. -30  435 


§  361.]  EXECUTORY   TRUSTS.  [CHAP.  XII. 

If  a  settlement  is  already  drawn  after  the  marriage,  but  not 
in  accordance  with  this  rule,  equity  will  correct  and  reform 
it  so  as  to  carry  out  this  intention.^  But  if  the  settlement 
was  formally  drawn  out  before  marriage  contrary  to  this  rule, 
the  court  will  presume  that  the  parties  abandoned  the  arti- 
cles, and  entered  into  a  new  agreement,  as  expressed  in  the 
settlement.^  If,  however,  a  settlement  before  marriage  is 
expressed  on  its  face  to  be  made  to  carry  out  the  articles, 
and  it  does  not  carry  them  out  in  this  respect,  equity  will 
reform  it.^  So  if  it  can  be  shown  in  any  other  way  that  the 
formal  settlement  was  intended  to  carry  out  the  articles,  and 
it  does  not  do  so,  equity  will  reform  it  on  the  ground  of  mis- 
take,* or  if  the  settlement  is  made  in  the  very  words  of  the 
articles,  and  the  legal  ejffect  of  the  words  of  the  articles  and 
settlement  is  different  from  the  intention  of  the  parties,  the 
settlement  will  be  corrected  and  reformed  in  order  to  carry 
out  the  exact  intention  of  the  parties.^  If,  however,  there 
are  any  intervening  rights,  as  those  of  an  innocent  purchaser 
without  notice,  his  rights  of  course  will  be  protected.^  So  it 
is  established  that  daughters  are  included  under  the  general 

1  Warrick  r.  Warrick,  3  Atk.  293;  Sheatfield  v.  Sheatfield,  Ca.  t. 
Talb  176;  Legg  v.  Goldwire,  Id.  20;  Burton  v.  Hastings,  Gilb.  Eq.  113; 
overruling  same  case,  1  Eq.  Ca.  Ab.  393;  Briscoe  v.  Briscoe,  7  Ir.  Eq. 
129. 

2  Legg  V).  Goldwire,  Ca.  t.  Talbot,  20;  Warrick  v.  Warrick,  3  Atk. 
291. 

8  Honor  v.  Honor,  1  P.  Wms.  123;  West  v.  Errissey,  2  P.  Wms.  349; 
Roberts  v.  Kingsley,  1  Ves.  238. 

4  Bold  V.  Hutchinson,  5  De  G.,  M.  &  G.  568;  Rogers  v.  Earl,  1  Dick. 
294;  1  Sugd.  V.  &  P.  143. 

5  West  V.  Errissey,  2  P.  Wms.  349;  Roberts  v.  Kingsley,  1  Ves.  238; 
Honor  v.  Honor,  1  P.  Wms.  128;  2  Vern.  6.38  ;  Powell  v.  Price,  2  P.  Wms. 
535;  Gaillard  v.  Pardon,  1  McMul.  Eq.  358:  Neves  v.  Scott,  9  How.  197  ; 
Gause  v.  Hale,  2  Ired.  Eq.  241;  Smith  v.  Maxwell,  1  Hill,  Eq.  101  ;  Allen 
V.  Rumph,  2  Hill,  Eq.  1;  Briscoe  v.  Briscoe,  7  Ir.  Eq.  129. 

6  Warrick  v.  Warrick,  3  Atk.  291;  Trevor  v.  Trevor,  1  P.  Wms.  022; 
West  V.  Errissey,  2  P.  Wms  349.  But  if  the  purchaser  have  notice  of 
the  articles,  they  may  be  enforced  against  him.  Davies  v.  Davies,  4 
Beav.  54  ;  Thompson  v.  Simpson,  1  Dr.  &  War.  491  ;  Abbott  v.  Geraghty. 
4  Tr.  Eq.  15. 

466 


CHAP.  XII.]  MARRIAGE    ARTICLES.  [§  362. 

term  of  heirs  or  issue^  and  that  they  take  as  purchasers.^ 
And  children  includes  grandchildren.^  This  has  been  held 
in  England.^  Of  course  in  the  United  States,  where  primo- 
geniture is  abolished,  estates  will  be  settled  upon  sons  and 
daughters  equally,  or  upon  daughters  alone  in  default  of 
sons.  But  if  the  children  or  issue  of  the  marriage  are  pro- 
vided for  in  some  other  way,  as  by  portions  to  be  raised  for 
them  in  such  manner  that  it  appears  that  they  are  not  in- 
tended to  take  as  purchasers  of  the  particular  estate  under 
the  settlement,  then  the  rule  in  Shelley's  case  will  prevail, 
and  the  parents  or  parent  may  sell  the  whole  estate.^  And 
so  where  there  is  an  actual  present  conveyance  of  personal 
property  by  a  marriage  contract  executed  before  marriage  in 
trust  for  the  wife,  and  at  her  death  to  the  heirs  of  her  body, 
it  was  held  to  be  an  executed  trust,  there  being  no  further 
conveyances  to  be  executed,  and  that  the  rule  in  Shelley's 
case  applied.^ 

§  362.  In  England,  when  a  married  woman  could  not  con- 
vey her  interest  in  real  estate,  a  strict  settlement  was  not 
ordered  under  marriage  articles  that  limited  the  husband's 
estate  to  the  heirs  of  the  body  of  the  wife,  for  the  reason 
that  this  created  an  entail  that  could  not  be  barred  without 
considerable  difficulty  ;  but  since  the  Fines  and  Recoveries 
Act,  the  difficulty  is  removed.®  Nor  will  the  court  order  a 
strict  settlement,  if  there  is  anything  in  the  nature  of  the 
limitations,  or  otherwise  on  the  face  of  the  articles,  which 
indicates  that  such  was  not  the  intention  of  the  parties,  for 

1  West  V.  Errissey,  2  P.  Wms.  349;  Comyn,  R.  412;  1  Bro.  P.  C.  225. 

2  Scott  V.  Moore,  1  Wins    (N.  C.)  Eq.  98. 

3  Burton  v.  Hastings,  2  P.  Wms.  535;  Gilb.  Eq.  113;  1  Eq.  Ca.  Ab. 
393;  Hartu.  Middlehiirst,  3  Atk.  371;  Maguire  v.  Scully,  2  Hog.  113;  1 
Beat.  370;  Marryat  v.  Townley,  1  Ves.  105;  Phillips  v.  Jones, 4  Dr.  &  Sm. 
406;  3DeG.,  J.  &  S.  72. 

*  Powell  V.  Price,  2  P.  Wms.  535;  Fearne's  Con.  Rem.  103. 

6  Carroll  v.  Renick,  7  Sm.  &  M.  799  ;  Tillinghast  v.  Coggeshall,  7  R.  I. 
383. 

^  Rochford  v.  Fitzmaurice,  2  Dru.  &  W.  19;  Highway  v.  Banner,  1  Bro. 
Ch.  587;  Howel  v.  Howel,  2  Ves.  358;  Green  ?;.  Ekins,2  Atk.  477;  Honor 
V.  Honor,  1  P.  Wms.  123. 

467 


§  364.]  EXECUTORY  TRUSTS.  [CHAP.  XII. 

the  reason  that  tlie  rule  now  under  discussion  was  established 
in  order  to  carry  out  the  intention  of  the  parties.  If,  there- 
fore, the  intention  of  the  parties  appears  to  be  in  accordance 
with,  or  not  contrary  to,  the  ordinary  rule,  the  ordinary  rule 
will  be  allowed  to  prevail.^ 

§  363.  If  personal  property  is  agreed  to  be  settled  on  the 
parents  for  life,  and  then  to  their  heirs,  or  the  heirs  of  their 
bodies,  the  chattels  will  not  vest  in  the  parents  absolutely, 
but  in  the  heirs  when  they  are  born ;  ^  and  it  is  not  necessary 
that  they  should  survive  their  parents,  or  become  actual 
heirs,^  unless  the  gift  is  to  the  parents  and  their  heirs  living 
at  the  death  of  the  surviving  parent,  or  there  are  other  equiv- 
alent words.* 

§  364.  If  there  is  a  covenant  in  marriage  articles  to  settle 
personal  property  upon  the  same  trusts,  and  for  the  same 
purposes,  as  the  real  estate  is  settled,  the  court  will  not  apply 
the  same  limitations  to  the  personal  as  to  the  real  estate,  for 
that  would  be  to  vest  an  absolute  interest  in  the  heirs  at 
their  birth ;  but  the  court  will  insert  a  provision  making  the 
personal  property  follow  the  course  of  the  real  estate.^   Courts 

^  Rochford  v.  Fitzmaurice,  2  Dra.  &  W.  19,  Highway  v.  Banner,  1  Bro. 
Ch.  587  ;  Howel  v.  Howel,  2  Ves.  358;  Green  v.  Ekins,  2  Atk.477;  Honor 
V.  Honor,  1  P.  AVms.  123;  Power  v.  Price,  2  P.  Wms.  535;  Chambers  v. 
Chambers,  2  Eq.  Ca.  Ab.  35;  Fitzg.  127. 

2  Hodgeson  v.  Bussey,  2  Atk.  89;  Barn.  195;  Bartlett  v.  Green,  13  Sim. 
218. 

3  Theebridge  v.  Kilburne,  2  Ves.  233. 
*  Read  v.  Snell,  2  Atk.  642 

s  Stanley  v.  Leigh,  2  P.  Wms.  690;  Gower  v.  Grosvenor,  Barn.  63; 
5  Madd.  348;  Newcastle  v.  Lincoln,  3  Ves.  387,  394,  397;  Scarsdale  v. 
Curzon,  1  John.  &  H.  51.  The  matter  referred  to  in  the  text  seldom  or 
never  arises  in  the  marriage  settlements  made  in  the  United  States,  as 
primogeniture  is  abolished,  and  entails  on  the  eldest  son  are  seldom  resorted 
to.  But  where  personal  chattels  are  made  to  vest  under  a  marriage  settle- 
ment in  the  eldest  son  as  heir,  and  such  son  dies  under  age,  very  awkward 
effects  follow ;  and,  under  covenants  to  settle  personal  property  upon  the 
same  limitations  as  are  applied  to  a  settlement  of  real  estate  wherein  the 
eldest  son  takes  as  heir,  it  was  a  matter  of  great  discussion  in  the  Court  of 
Chancery  and  in  the  House  of  Lords,  what  kind  of  provisions  ought  to  be 

468 


CHAP.  XII.]  MARRIAGE   SETTLEMENTS.  [§  365. 

will  also  insert  a  provision  that  the  children  or  issue  shall 
take,  as  tenants  in  common,  and  not  as  joint-tenants,  on 
account  of  the  inconveniences  of  joint-tenancies,  and  from 
the  presumed  intention  of  the  parties  ;i  and  so  the  court 
will  insert  other  words  and  conditions,  and  vary  the  literal 
instruction  of  the  articles  in  order  to  carry  out  the  presumed 
intention,  and  promote  a  convenient  settlement  for  the  pro- 
tection and  security  of  all  the  parties,^  as  if  the  settlement  is 
to  be  of  all  the  property  which  the  settlor  might  thereafter  be- 
come entitled  to,  it  will  be  construed  to  embrace  only  the  prop- 
erty acquired  during  the  marriage.^  The  court  will  not  always 
order  a  formal  settlement  to  be  drawn  out,  but  will  declare 
the  meaning  and  intention  of  the  articles,  and  leave  the  par- 
ties to  act  upon  the  declaration,  as  if  it  was  a  formal  settlement 
drawn  out  and  executed  by  them.^  So  the  court  will  some- 
times rectify  the  settlement  drawn  under  articles  by  a  decree, 
without  ordering  a  new  deed  to  be  drawn  out  and  executed.^ 

§  365.  Marriage  settlements,  whether  made  in  pursuance 
of  articles,  or  under  directions  contained  in  wills,  or  under 
decrees  of  the  court,  are  matters  in  which  courts  exercise  the 
most  liberal  principles  of  equity.  If  a  settlement  is  drawn 
up  under  a  decree,  and  it  is  not  in  all  respects  in  accordance 
with  the  decree,  the  court  will  set  it  aside,  and  order  a  new 
settlement.^  In  Grout  v.  Van  Schoonhoven,  the  court  ordered 
a  new  settlement,  in  substance  that  the  trust  should  be  for 

inserted  to  protect  the  parents  and  other  children  in  case  the  eldest  son 
died  under  age  and  without  issue.  Newcastle  v.  Lincoln,  3  Ves.  387;  12 
Ves.  218. 

1  Taggart  v.  Taggart,  1  Sch.  &  Lef.  88;  Rigden  v.  Vallier,  3  Atk.  734; 
Marryat  v.  Townley,  1  Ves.  103.  Joint-tenancy  is  abolished  by  statute 
in  most  of  the  United  States,  with  the  exception,  in  some  States,  of  gifts 
and  grants  to  husband  and  wife. 

2  Kentish  v.  Newman,  1  P.  Wms.  234;  Martin  v.  Maitin,  2  R.  &  M 
507;  Master  v.  De  Croismar,  11  Beav.  184;  Targus  v.  Puget,  2  Ves.  194. 

^  Steinberger  v.  Potter,  3  Green,  Ch.  452. 
*  Byam  v.  Byam,  19  Beav.  .58. 
6  Tebbitt  V.  Tehbitt,  1  De  G.  &  Sm.  506. 
6  Temple  v.  Hawley,  1  Sandf.  Ch.  151. 

469 


§  365.]  EXECUTORY   TRUSTS,  [CHAP.  XII, 

the  wife  during  lier  life  witliout  power  of  anticipating  the 
income ;  and  upon  her  death  for  tlie  use  of  her  husband  for 
life,  in  case  he  survived  her ;  and,  after  the  death  of  both,  to 
be  divided  equally  among  all  their  children  then  living,  and 
the  descendants  of  such  as  had  died  leaving  issue,  per  stirpes  ; 
with  a  power  to  make  advances  with  the  approbation  of  the 
trustees  to  the  children,  on  their  attaining  full  age  or  being 
married,  out  of  the  capital  fund,  in  anticipation  of  the  ulti- 
mate distribution,  in  order  to  set  them  up  in  the  world.^  An 
advance  cannot  be  made  in  order  that  a  child  may  put  the 
money  in  his  pocket,  but  an  advance  may  be  made  to  trustees 
under  a  marriage  settlement  for  a  child.^  Where  there  was 
power  of  advancement  to  a  married  woman,  it  was  held  that 
an  advance  to  her  husband  to  set  him  up  in  business  might 
be  allowed ;  ^  and  so  where  there  was  power  in  a  settlement 
to  withdraw  funds,  and  lay  them  out  in  the  purchase  of  a 
trade  for  the  benefit  of  husband  and  wife,  the  power  may  be 
exercised  for  the  benefit  of  one  after  the  death  of  the  other,* 
In  Imlay  v.  Huntington,  a  husband  covenanted  that  he  would 
pay  over  to  certain  trustees  $10,000,  and  one  half  of  certain 
other  expected  moneys  of  his  intended  wife,  to  be  held  by 
said  trustees  in  trust  for  the  wife  for  the  term  of  twenty 
years,  after  which  time  they  were  to  convey  to  such  persons 
as  the  wife  should  appoint.  The  marriage  was  consummated, 
and  the  husband  received  $60,000,  which  he  continued  to 
hold  and  manage  as  his  own  during  the  lifetime  of  his  wife, 
making  no  payment  to  the  trustees,  and  neither  the  trustees 
nor  the  wife  recjuesting  him  to  pay  the  sum  over,  or  to  make 
any  settlement  in  puisuance  of  the  articles.  On  the  death 
of  the  wife,  at  the  end  of  twenty  years,  her  brothers  and 
sisters,  there  being  no  issue  of  the  marriage,  applied  to  the 
court  by  bill  in  equity  for  the  execution  of  the  marriage 
settlement,  in  accordance  with  the  articles  and  covenants 
entered  into  by  the  husband    before    marriage :    but  it  was 

^  Grout  V.  Van  Schoonhoven,  1  Saudf.  Ch.  342. 
2  Roper  V.  Curzon,  L.  R.  11  Eq.  452 
8  In  re  Kershaw's  Trust.  L.  R.  6  Eq.  322. 
4  Doorly  v.  Arnold,  IS  W    R.  510. 

470 


CHAP.  Xir.]  MARRIAGE    SETTLEMENTS.  [§  366. 

held  that  it  was  competent  for  the  wife  to  discharge  the 
husband  from  the  fulfilment  of  the  covenants,  and  to  aban- 
don the  trust ;  that,  under  the  circumstances  of  the  case,  the 
articles  were  abandoned  by  the  wife  and  all  the  parties  ;  that 
the  wife's  personal  property  vested  absolutely  in  the  husband ; 
and  that  the  wife's  heirs  had  no  right  to  maintain  the  bill  for 
any  part  of  her  personal  estate.^ 

§  366.  In  executory  trusts  created  by  wills,  no  presumption 
arises  a  priori  that  a  provision  was  intended  for  the  children 
of  the  first  taker,  as  in  marriage  settlements,  and  that  such 
children  were  intended  to  take  as  purchasers.  If  the  trust 
be  "  for  A.  and  the  heirs  of  his  body,"  ^  or  "  for  A.  and  the 
heirs  of  his  body  and  their  heirs,"  ^  or  "  for  A.  for  life  and 
after  his  decease  to  the  heirs  of  his  body,"*  A.  will  be  tenant 
in  tail ;  and  he  may  disappoint  his  heirs  by  barring  the  entail. 
So,  where  a  testator  directed  an  estate  to  be  settled  on  his 
"  daughter  and  her  children,  and,  if  she  died  without  issue," 
remainder  over,  the  court  held  that  the  daughter  was  tenant 
in  tail ;  and  that  in  a  voluntary  devise  the  court  must  take  it 
as  they  find  it,  though  upon  like  words  in  a  marriage  settle- 
ment it  might  be  different.^  So  where  a  testator  directed 
lands  to  be  settled  on  his  "  nephew  for  life,  remainder  to  the 
heirs  male  of  his  body,  and  the  heirs  male  of  every  such  heir 
male  severally  and  successively,  one  after  another,  as  they 
should  be  in  seniority  and  priority  of  birth,  every  elder  and 
the  heirs  male  of  his  body  to  be  preferred  before  the  younger," 
it  was  held  that,  although  the  nephew  took  by  a  voluntary 
executory  devise,  the  court  must  execute  it  in  the  words  of 
the  will  and  according  to  the  rules  of  law,  and  that  equity 
could  not  carry  the  words  further  than  the  same  words  would 
operate  at  law,  and  that  the  nephew  took  an  estate  tail.     The 

1  Imlay  v.  Huntington,  20  Conn.  146;  Jones  v.  Higgins,  L.  R.  2  Eq.  538. 

2  Harrison  v.  Naylor,  2  Cox,  247;  Bagshaw  v.  Spencer,  1  Ves.  151; 
Marshall  v.  Bousley,  2  Madd.  166;  Robertson  v.  Johnston,  36  Ala.  197. 

3  Marryat  v.  Townley,  1  Ves.  104. 

*  Blackburn  v.  Stables,  2  V.  &  B.  870;  Seale  v.  Seale,  1  P.  Wms.  290; 
Meure  v.  Meure,  2  Atk.  266  ;  Robertson  v.  Johnston,  86  Ala.  197. 
5  Sweetapple  v.  Bindon,  2  Vern.  536. 

471 


§  367.]  EXECUTORY  TRUSTS.  [CHAP.  XII. 

words  in  this  case  all  went  upon  the  idea  of  an  entail.^  So 
if  there  is  a  direction  that  the  trustees  shall  not  give  up  their 
trust  until  "  a  proper  entail  was  made  to  the  heir  male  by 
them."  2  But  in  another  similar  executory  trust,  Lord  Eldon 
declined  to  compel  a  purchaser  to  accept  the  title,  on  the 
ground  that  the  entail  was  too  doubtful  to  be  acted  upon  in 
so  grave  a  matter.^  Where  a  testator  devised  real  estate  to 
his  daughter,  then  unmarried,  in  trust  for  her  heirs,  she  to 
receive  the  income  for  her  and  their  support  and  education, 
and,  if  she  should  die  leaving  no  heirs,  then  over  to  her 
brothers  and  sisters,  it  was  held  that  the  word  income  passed 
the  estate  to  the  daughter,  that  the  word  heirs  was  a  word  of 
limitation,  and  that  the  daughter  took  an  estate  tail.*  In  the 
gift  of  a  fund  the  term  "  heirs  at  law  "  means  next  of  kin  or 
persons  entitled  under  the  statute  of  distributions  relating  to 
personal  property.^ 

§  367.  In  executory  trusts  under  marriage  articles,  many 
distinctions  arise  upon  the  question.  Who  may  enforce  their 
specific  performance,  and  compel  the  execution  of  the  formal 
deed  and  the  disposal  of  the  property  in  accordance  with  the 
settlement  that  should  have  been  made  under  the  articles  ? 
Thus  the  general  rule  is,  that  parties,  seeking  a  specific  exe- 
cution of  such  articles,  must  be  those  who  come  strictly 
within  the  reach  and  influence  of  the  consideration  of  the 
marriage,  or  who  claim  through  them,  as  the  wife,  or  the 
husband,  and  the  issue  of  the  husband  or  wife,  or  both.  As  a 
general  rule,  mere  volunteers,  or  collateral  relatives  of  hus- 
band or  wife,  cannot  interfere  and  ask  for  a  specific  perform- 
ance of  the  articles.^     But  there  are  so  many  exceptions  and 

1  Legatt  V.  Sewell,  2  Vera.  551;  McPherson  v.  Snowden,  19  Md. 
197. 

2  Blackburn  v.  Stables,  2  V.  &  B.  367;  Marshall  v.  Bousley,  2  Madd. 
166;  Dodson  v.  Dodson,  3  Bro.  Ch.  405. 

3  Jervoise  v.  Northumberland,  1  J.  &  W.  559 ;  Woolmore  v.  Burrows, 
1  Sim.  512. 

*  Allen  V.  Henderson,  49  Pa.  St.  333. 

6  White  V.  Stanfield,  146  Mass.  424. 

^  Vernon  v.  Vernon,  2  P.  Wms.  594;  Edwards  v.  Warwick,  Id.  171; 

472 


CHAP.  XII.]       WHO    MAY   ENFORCE   THE  SETTLEMENT.  [§  367. 

qualifications  to  this  rule,  that  a  case  is  rarely  decided  upon 
it.  The  principle  is,  that,  to  bring  collateral  relations  within 
the  reach  and  influence  of  the  consideration,  there  must  be 
something  over  and  above  that  flowing  from  the  immediate 
parties  to  the  marriage  articles,  from  which  it  can  be  inferred 
that  relatives  bej^ond  the  issue  were  intended  to  be  provided 
for,  and  that,  if  the  provision  in  their  behalf  had  not  been 
agreed  to,  the  superadded  consideration  would  not  have  been 
given.i  While  this  is  the  general  rule,  the  court  seize  hold 
of  the  slightest  valuable  consideration  to  give  effect  to  the 
settlement  in  favor  of  collateral  relatives ;  and  it  need  not 
appear  that  these  slight  considerations  were  inserted  in  favor 
of  distant  relatives :  the  court  will  presume  such  to  be  the 
case.^  The  result  of  all  the  cases  is,  that,  if  from  the  circum- 
stances under  which  marriage  articles  were  entered  into  by 
the  parties,  or  as  collected  from  the  face  of  the  instrument 
itself,  it  appears  to  have  been  intended  that  the  collateral 
relatives  in  a  given  event  should  take  the  estate,  and  a  proper 
limitation  to  that  effect  is  contained  in  the  articles,  a  court  of 
equity  will  enforce  the  trust  for  their  benefit.  Such  parties 
are  not  volunteers  outside  the  deed,  but  come  fairly  within 
the  influence  of  the  consideration  upon  which  it  is  founded. 
Such  consideration  extends  through  all  the  limitations  of  the 
articles  for  the  benefit  of  the  remotest  persons  provided  for, 
consistent  with  the  rules  of  law.^     But  of  course  there  is  a 

Osgood  V.  Strode,  Id.  245;  Ithell  v.  Beane,  1  Ves.  215;  1  Dick.  132; 
Stephens  v.  Trueman,  1  Ves.  73;  Pulvertoft  v.  Pulvertoft,  18  Yes.  90; 
2  Kent,  Com.  172,  173;  Atheily  on  Mar.  Sett.  145;  Bradish  v.  Gibbs,  3 
Johns.  Ch.  5.50;  West  v.  Errissey,  2  P.  Wms.  349;  Kettleby  t-.  Atwood, 
1  Vern.  298,  471;  Williamson  v.  Codrington,  1  Ves.  512;  Colman  v.  Sarrel, 
1  Ves.  Jr.  50;  3  Bro.  Ch.  13;  Ellison  v.  Ellison,  6  Ves.  662;  Graham  v. 
Graham,  1  Ves.  Jr.  275;  Wycherly  i'.  Wycherly, 2  Eden,  177,  note;  Bunn 
V.  Winthrop,  1  Johns.  Ch.  336 ;  Gevers  v.  Wright,  3  Green,  Ch.  330. 

1  Osgood  V.  Strode,  2  P.  Wms.  245;  Goring  v.  Nash,  3  Atk.  186;  Ham- 
erton  v.  Whitton,  2  Wils.  356;  Williamson  v.  Codrington,  1  Ves.  512; 
Bleeker  v.  Bingham,  3  Paige,  246. 

2  Neves  v.  Scott,  9  How.  209;  Stephens  v.  Trueman,  1  Ves.  73;  Ed- 
wards V.  Warwick,  2  P.  Wms.  171. 

8  Neves  v.  Scott,  9  How.  210;  Canby  v.  Lawson,  5  Jones,  Eq.  32 ;  Den- 
nison  v.  Goehring,  7  Barr,  175;  King  v.  Whitely,  10  Paige,  465.     See  this 

473 


§  369.]  EXECUTORY   TRUSTS.  [CHAP,  XII. 

more  direct  equity  in  favor  of  a  wife  and  children.^  So  in 
respect  to  chattel  interests,  it  has  been  held  that  a  bond  under 
seal,  though  voluntary,  will  uphold  a  decree  for  the  execution 
of  the  trust  in  favor  of  those  whom  the  obligor  is  under  ob- 
ligations to  support,  as  wife  or  children ;  for  a  seal  in  law 
imports  a  consideration.^  But  this  doctrine  seems  to  be  re- 
jected ;  and  it  is  now  held  that  neither  wife  nor  child  can 
enforce  a  purely  voluntary  contract  or  settlement.^ 

§  368.  And  where  a  third  person  —  parent,  agent,  or  friend 
of  the  parties  —  holds  out  any  considerations  of  a  pecuniary 
nature  to  induce  a  marriage,  and  articles  are  drawn  up,  and  a 
marriage  takes  place,  equity  will  compel  the  party  holding 
out  the  inducements  to  make  them  good,  or  specifically  per- 
form the  articles.* 

§  369.  If,  however,  in  an  executory  trust  created  in  a  will 
there  are  indications  of  an  intention  that  the  words  "  heirs  of 
the  body  "  shall  be  words  of  purchase  and  not  of  inheritance, 
they  will  receive  that  construction ;  that  is,  the  intention  of 
the  testator  will  be  carried  out,  if  it  is  sufficiently  clear, 
although  the  same  words  in  an  ordinary  grant  would  create 
an  estate  tail.     Thus,  if  there  are  other  words  in  the  will  that 

matter  very  learnedly  discussed  in  Neves  r.  Scott,  9  Monthly  Law  Re- 
porter, 67,  Boston,  June,  1846.  This  decision,  however,  was  overruled 
in  Neves  v.  Scott,  9  How.  98.  The  case  was  again  discussed  before  the 
State  court  of  Georgia,  and  the  opinion  of  the  Circuit  Court  of  the  dis- 
trict of  Georgia  was  followed.  That  case  was  in  turn  overruled  in  13 
How.  268.  The  judgment  of  tlie  Supreme  Court  of  the  United  States 
was,  that  on  the  face  of  that  instrument  the  consideration  extended  to 
brothers  and  sisters;  and,  further,  that  it  was  an  executed  trust,  and  that 
they  had  an  interest. 

1  Pulvertoft  V.  Pulvertoft,  18  Ves.  99. 

2  Bunn  V.  Winthrop,  1  Johns.  Ch.  336;  Minturn  v.  Seymour,  4  Johns. 
Ch.  500 ;  Lechmere  v.  Carlisle,  3  P.  Wms.  222;  Walwyn  v.  Coutts,  3  JMer. 
70S;  Antrobus  ik  Smith,  12  Ves.  44;  Colman  v.  Sarrel,  1  Yes.  Jr.  54; 
Beard  v.  Nutthall,  1  Vern.  427. 

3  Jefferys  v.  Jefferys,  1  Cr.  &  Phil.  138 ;  Holloway  v.  Headington,  8 
Sim.  325. 

*  Ilammersley  v.  De  Biel,  2  CI.  &  Fin.  45. 

474 


CHAP.  XII. J  HEIRS    AND    PURCHASE.  [§  369. 

indicate  that  the  words  "  heirs  of  the  body  "  are  words  of  des- 
ignation, and  not  of  inheritance,  such  heirs  will  take  by  pur- 
chase, and  the  first  taker  of  course  will  have  only  an  estate 
for  life.  Thus,  if  the  testator  direct  a  settlement  on  A.  for 
life  "  without  impeachment  of  waste,"  ^  or  with  a  limitation 
"  to  preserve  contingent  remainders,"  ^  or  if  he  direct  that 
"  care  be  taken  in  the  settlement  that  the  tenant  for  life  shall 
not  bar  the  entail,"  ^  the  superadded  words  show  the  intention 
to  be,  that  the  first  taker  shall  have  only  an  estate  for  life, 
with  no  power  over  the  inheritance.  So,  where  a  gift  was  in 
trust  for  the  separate  use  of  a  married  woman  for  life,  she 
alone  to  receive  the  rent,  and  her  husband  not  to  intermeddle, 
and,  after  her  decease,  to  the  heirs  of  her  body,  the  wife  took 
only  for  life,  and  the  words  "  heirs  of  her  body  "  were  words 
of  purchase ;  for  if  the  wife  takes  the  inheritance  in  tail,  the 
husband  will  have  curtesy,  which  would  be  contrary  to  the 
clause  against  his  intermeddling.*  So,  where  a  testator  di- 
rected an  estate  to  be  settled  on  a  married  woman  for  life  for 
her  separate  use,  and  at  her  death  on  her  issue,  she  was  not 
tenant  in  tail ;  for  there  would  be  only  an  equitable  estate  in 
her,  while  a  legal  estate  would  vest  in  her  issue,  and  the 
two  estates  could  not  coalesce  in  such  manner  as  to  make 
her  tenant  in  tail.^  So  a  direction  to  settle  land  on  A.  and 
the  heirs  of  his  body  "  as  counsel  shall  advise,"  ^  or  as  "  the 
executors  shall  think  fit,"  ^  implies  that  a  simple  estate  tail  is 
not  intended,  for  if  it  was  there  would  be  no  need  of  the  addi- 
tional words.     And  where  the  trust  was  to  settle  on  A.  for 

1  Glenorchy  v.  Bosville,  Ca.  t.  Talb.  3  ;  1  Lead.  Ca.  Eq.- 1,  and  notes. 

2  Pappillon  V.  Voice,  2  P.  Wms.  471 ;  Rochford  v.  Fitzmaurice,  1  Conn. 
&  Laws.  158. 

2  Leonard  v.  Sussex,  2  Vern.  526. 

*  Roberts  v.  Dixwell,  1  Atk.  607 ;  West,  Ca.  t.  Hardw.  536 ;  Turner  v. 
Sargent,  17  Beav.  515;  Stanley  v.  Jackman,  5  W.  R.  302;  Stonorv.  Cur- 
wen,  5  Sim.  264;  Shelton  v.  Watson,  16  Sim.  542. 

*  Stonor  V.  Curwen,  5  Sim.  268;  Verulam  v.  Bathurst,  13  Sim.  386; 
Coape  V.  Arnold,  2  Sm.  &  Gif.  311 ;  4  De  G.,  M.  &  G.  574.  And  see 
Collier  v.  McBean,  34  Beav.  426. 

6  White  V.  Carter,  2  Eden,  366:  Ainb.  670. 
'  Read  i.  Snell,  2  Atk.  612. 

475 


§  B71.]  EXECUTORY   TRUSTS.  [CHAP.  XII. 

life  without  impeachment  of  waste,  remainder  to  his  issue  in 
strict  settlement,  the  court  directed  the  estates  to  be  settled  on 
A.  for  life,  without  impeachment  for  waste,  remainder  to  his 
sons  successively  in  tail  male,  remainder  to  his  daughters  as 
tenants  in  common  in  tail  male,  with  cross-remainders  in  tail 
male,  and  with  limitations  to  trustees  to  preserve  contingent 
remainders.^ 


§  370.  Where  a  testator  devised  his  estate  to  trustees  for 
the  term  of  six  years,  and  to  be  then  divided  among  his  chil- 
dren or  their  issue,  and  conveyances  to  be  given  therefor, 
and  directed  that  "  in  each  deed  or  writing  to  any  of  my  chil- 
dren shall  be  inserted  and  expressed  a  clause  limiting  such 
grant  or  interest  conveyed  to  the  grantee  for  life,  ivith  re- 
mainder over  to  the  right  heirs  of  such  grantee,  their  heirs 
and  assigns  forever^''  it  was  held  that  the  deeds  must  be  so 
drawn  as  to  give  the  children  a  life-estate  only,  and  not  a 
fee  in  their  shares.^  The  same  rule  of  construction  has  been 
established  and  enforced  in  Georgia,^  and  in  Tennessee,* 
and  has  been  recognized  in  South  Carolina,^  Maryland,^  and 
Pennsylvania.'^ 

§  371.  It  will  be  observed  that  "  heirs  of  the  body  "  and 
"  issue  "  are  not  synonymous  terms.  "  Heirs  "  are  technical 
words  of  limitation,  while  the  word  "  issue  "  is  prima  facie  a 

1  Trevor  v.  Trevor,  13  Sim.  108  ;  1  H.  L.  Ca.  239  ;  Coape  v.  Arnold, 
2  Sm.  &  Gif.  311 ;  4  De  G.,  M.  &  G.  571. 

2  Wood  V.  Burham,  6  Paige,  515,  affirmed  on  appeal,  27  Wend.  9.  The 
rule  in  Shelley's  case  was  in  force  in  New  York  at  the  time,  and  would 
have  applied  to  this  case  if  it  had  not  been  an  executory  trust.  The  rule 
in  Shelley's  case  was  soon  after  abrogated  in  that  State,  and  the  decision 
has  ceased  to  be  important ;  nor  is  the  subject-matter  now  under  discus- 
sion of  importance  in  any  State  where  the  rule  in  Shelley's  case  is 
abolished  by  statute. 

8  Edmondson  v.  Dyson,  2  Kelly,  307;  Wiley  v.  Smith,  3  Kelly,  551, 
559;  Neves  v.  Scott,  9  How.  197;  13  How.  268. 
*  Loring  v.  Hunter,  8  Yerg.  4. 

s  Garner  v.  Garner,  1  Des.  437:  Porter  v.  Doby,  2  Rich.  Eq.  49. 
6  Horner  v.  Lyeth,  4  H.  &  J.  431. 
'  Findlay  v.  Riddle,  3  Binney,  139. 

476 


CHAP.  XII.]  HEIRS   AND   PURCHASE.  [§  372. 

word  of  purchase ;  and  courts  have  ordered  a  strict  settlement 
when  the  word  "  issue "  was  used,  when  it  would  probably 
have  been  otherwise  if  the  word  "  heir  "  had  been  used.^  The 
words  "  heirs  of  the  body,"  ^  and  "  issue,"  ^  embrace  daughters  ; 
for  they  equally  answer  the  description,  and  are  equally  the 
objects  of  bounty ;  and  where  the  words  are  words  of  pur- 
chase, the  settlement,  in  default  of  sons,  will  be  made  upon 
daughters,  as  tenants  in  common  in  tail,  with  cross-remain- 
ders.* In  the  United  States,  the  settlement  would  be  made 
upon  sons  and  daughters  in  common,  with  cross-remainders  in 
default  of  issue,  unless  the  direction  was  to  settle  upon  some 
particular  one  of  the  heirs  of  the  body  or  issue. 

§  372.  If  the  limitations  of  an  executory  trust  are  imper- 
fectly or  defectively  declared  in  a  will,  the  court  will  rectify 
the  limitations,  and  order  the  settlements  to  be  made  in 
accordance  with  the  intention  of  the  testator,  and  to  be  drawn 
up  in  proper  form  to  effectuate  that  intention.^     But  if  a  testa- 

1  Meure  v.  Meure,  2  Atk.  265;  Haddelsey  v.  Adams,  22  Beav.  276; 
Rochford  v.  Fitzmaurice,  2  Conn.  &  Laws.  158;  Bastard  v.  Proby,  2  Cox, 
6;  Dodson  v.  Hay,  3  Bro.  Ch.  405;  Stonor  v.  Curwen,  5  Sim.  264;  Home 
V.  Barton,  G.  Coop.  257;  Crozier  v.  Crozier,  2  Conn.  &  Laws.  311;  Ash- 
ton  V.  Ashton,  cited  in  Bagshaw  v.  Spencer,  1  Coll.  Jur.  402 ;  McPherson 
V.  Snowden,  19  Md.  197.  Where  a  testator  intends  the  estate  to  go  to  the 
whole  body  of  persons,  in  legal  succession,  constituting  in  law  the  entire 
line  of  descent  lineal,  he  evidently  means  the  same  thing  as  if  he  had  said 
"  issue,"  or  "  heirs  of  the  body;  "  or  if  he  intends  it  to  go  to  the  whole 
line  of  descent,  lineal  and  collateral,  he  means  the  same  thing  as  if  he 
had  used  the  term  "heirs,"  which,  as  a  word  of  art,  describes  precisely 
the  same  line  of  descent.  Per  Agnew,  J.,  in  Yarnall's  App.,  70  Pa.  St. 
340.  And  see  Kleppner  v.  Laverty,  70  Pa.  St.  70;  Kiah  v.  Grenier,  1 
N.  Y.  Sup.  Ct.  388. 

2  Bastard  v.  Proby,  2  Cox,  6. 

3  Meure  v.  Meure,  2  Atk.  265 ;  Trevor  v.  Trevor,  13  Sim.  108 ;  Ashton 
V.  Ashton,  ut  supra. 

*  Marryat  v.  Townley,  1  Ves.  105;  Meure  r.  Meure,  2  Atk.  265;  Trevor 
('.  Trevor,  13  Sim.  108;  1  H.  L.  Ca.  239  ;  Bastard  v.  Proby,  2  Cox,  6; 
Ashton  V.  Ashton,  in  Spencer  v.  Bagshaw,  ut  supra :  Shelton  v.  Watson, 
16  Sim.  543. 

s  Franks  v.  Price,  3  Beav.  182;  Doncaster  v.  Doncaster,  3  K.  &  J.  26 ; 
Rochford  v.  Fitzmaurice,  1  Conn.  &  Laws.  173 ;  2  Dr.  &  War.  21. 

477 


§  373,]  EXECUTORY   TRUSTS,  [CHAP.  XII. 

tor  undertake  to  be  bis  own  conveyancer,  and  bimself  draw 
up  in  bis  will  all  tbe  particulars  of  tbe  limitations  upon  wbicb 
be  desires  bis  property  to  be  settled,  intending  tbem  to  be 
final  and  to  be  carried  into  effect  in  tbe  trusts,  tbe  court 
is  bound  by  tbe  words,  as  in  Austen  v.  Taylor,  wbere  Lord 
Nortbington  said  tbat  "  tbe  testator  bad  referred  no  settle- 
ment to  tbe  trustees  to  complete,  but  bad  declared  bis  own 
uses  and  trusts,"  and  tbat  tbere  was  no  autbority  in  tbe  court 
to  vary  tbem,^ 

§  373.  Wben  a  testator  bas  devised  lands  in  strict  settle- 
ment, and  tben  devises  personal  cbattels  as  heirlooms,  to  be 
held  by,  or  in  trust  for,  tbe  parties  entitled  to  tbe  use  of  tbe 
real  estate  under  tbe  limitations  of  tbe  settlement ;  or  wben 
be  expresses  a  desire  tbat  tbe  beirlooms  sbould  be  beld  upon 
tbe  same  trusts  as  tbe  real  estate,  —  "  so  far  as  tbe  rules  of 
law  and  equity  will  permit,"  tbe  tenant  for  life  will  bave  tbe 
use  of  tbe  heirlooms,  and  they  will  vest  absolutely  in  tbe  first 
tenant  in  tail,  upon  his  birth,  though  be  die  immediately 
after.2  In  such  cases,  the  court  regards  tbe  trust,  either  as 
executed,  or,  if  the  trust  is  executory,  tbat  it  bas  no  authority 
to  insert  a  limitation  over  in  case  of  tbe  tenant  in  tail  dying 
under  twenty-one.  But  such  a  limitation  over  is  not  illegal ; 
and  if  the  bequest  of  the  beirlooms  is  clearly  executory,  and 
if  tbe  intention  of  tbe  testator  is  plainly  manifested  tbat  no 
person  shall  take  the  chattels  absolutely  who  does  not  live 
to  become  possessed  of  tbe  real  estate,  the  court  will  execute 

1  Austen  v.  Taylor,  1  Eden,  368.  This  case,  however,  has  been  criti- 
cised.    See  Green  v.  Stephens,  19  Ves.  76;  Jervoise  v.  Northumberland, 

1  J.  &  W.  572.     And  see  East  i-.  Twyford,  9  Hare,  713 ;  Meure  v.  Meure, 

2  Atk.  265;  Harrison  v.  Naylor,  2  Cox,  247. 

2  Foley  V.  Burnell,  1  Bro.  Ch,  274;  Yaughan  v.  Burslem,  3  Bro.  Ch. 
101 ;  Newcastle  v.  Lincoln,  3  Ves.  387 ;  Carr  v.  Erroll,  14  Yes.  478;  Traf- 
ford  I'.  Trafford,  3  Atk.  347;  Doncaster  v.  Doncaster,  3  K.  &  J.  26;  Row- 
land V.  Morgan,  6  Hare,  463;  2  Phill.  674;  Gower  ?•,  Grovesnor,  Barn. 
Ch.  54;  5  Madd.  337,  overruled;  Evans  v.  Evans,  17  Sim.  108;  Tolle- 
mache  v.  Coventry,  2  CI.  &  Fin.  611;  8  Bligh  (n.  s.),  547;  Stapleton  v. 
Stapleton,  2  Sim.  (n.  s.)  212;  Deerhurst  v.  St.  Albans,  5  Madd.  232,  over- 
ruled ;  Scarsdale  v.  Curzon,  1  John.  &  H.  40,  where  all  the  cases  are  cited 
and  commented  on. 

478 


CHAP.  XII.]  WHAT   POWERS   WILL   BE   INSERTED.  [§  375. 

the  intention  by  directing  the  insertion  of  a  limitation  that 
the  absolute  interest  of  the  first  tenant  in  tail,  if  he  should 
die  under  twenty-one,  should  go  over  to  the  next  person  in 
remainder.!  And  so  where  the  absolute  vesting  of  the  chat- 
tels is  coupled  with  the  actual  possession,  and  is  therefore 
suspended  until  the  death  of  the  tenant  for  life,  the  chattels 
will  vest  in  the  child,  who,  after  the  death  of  the  tenant  for 
life,  shall  fulfil  all  the  requisites  of  being  tenant  in  tail  in 
possession.^ 

§  374.  If  the  words  of  a  will,  taken  in  their  ordinary  sense, 
create  a  joint-tenancy,  the  court  cannot  order  a  settlement 
giving  a  tenancy  in  common,  as  it  may  do  under  marriage  arti- 
cles. But  in  some  cases,  where  a  testator  is  providing  for  his 
children,  or  where  a  grandparent  in  loco  parentis  is  providing 
for  his  grandchildren,  the  court  will  order  a  settlement  that 
will  create  a  tenancy  in  common.^  And,  generally,  executory 
trusts  under  wills  will  be  construed  in  the  same  manner  as 
marriage  articles  entered  into  after  marriage.* 

§  375.  When  a  settlement  is  directed  in  an  executory  trust, 
but  there  is  no  direction  as  to  the  powers  to  be  given  under 
it,  the  court  cannot  order  the  insertion  of  any  powers,^  except 
perhaps  the  power  of  leasing,  which  generally  is  an  implied 
power  to  enable  a  party  to  enjoy  the  estate.^  But  if  the  ex- 
ecutory articles  or  the  will  contain  a  direction  to  insert  the 
"  usual  powers"  powers  to  lease  for  twenty-one  years,'^  of  sale 

1  Potts  V.  Potts,  3  Jo.  &  Lat.  353;  1  H.  L.  Ca.  671;  Trafford  v.  Traf- 
ford,  3  Atk.  347;  Lincoln  v.  Newcastle,  3  Ves.  387. 

2  Scarsdale  v.  Curzon,  1  John.  &  H.  40. 

3  Synge  v.  Hales,  2  B.  &  B.  499 ;  Marryat  v.  Townley,  1  Ves.  102.  But 
there  were  other  circumstances  in  these  cases  that  indicated  a  tenancy  in 
common.     McPherson  v.  Snowden,  19  Md.  197. 

*  Rochford  v.  Fitzmaurice,  1  Conn.  &  Laws.  158. 

6  "\Mieete  v.  Hall,  17  Ves.  80  ;  Brewster  v.  Angell,  1  J.  &  W.  628. 

®  Woolmore  i;.  Burrows,  1  Sim.  518;  Fearne's,  P.  W.  310;  but  see  the 
late  cases.  Turner  v.  Sargent,  17  Beav.  515;  Scott  v.  Steward,  27  Beav. 
367;  Charlton  v.  Kendall,  1  Hare,  296. 

'  Hill  V.  Hill,  6  Sim.  144;  Bedford  v.  Abercorn,  1  M.  &  Cr.  312. 

479 


§  875.]  EXECUTORY  TRUSTS.  [CHAP.  XII. 

and  exchange/  of  varying  the  securities,^  of  appointing  new 
trustees,^  and  (according  to  the  nature  of  the  property)  of 
partition,  of  leasing  mines,  and  of  granting  building  leases, 
will  be  inserted.*  But  there  is  a  distinction  between  powers 
for  the  management  and  enjoyment  of  the  estate,  and  powers 
which  are  personally  beneficial  to  one  or  more  particular  per- 
sons, such  as  powers  of  jointure,  to  charge  portions,  or  to 
raise  money  for  a  particular  purpose.^  The  court  cannot 
therefore  order  these  latter  powers  to  be  inserted  under  the 
direction  to  insert  the  usual  powers,  for  there  is  no  rule  by 
which  the  court  could  be  governed  in  reducing  the  corpus  of 
the  estate.^  So  if  certain  particular  powers  are  directed  to 
be  inserted,  the  usual  powers  will  be  qualified  by  the  direction. 
Thus,  where  it  was  directed  that  the  settlement  should  con- 
tain a  power  of  leasing  for  twenty-one  years,  a  power  of  sale 
and  exchange,  and  of  appointment  of  new  trustees,  it  was 
held  that  a  power  of  granting  building  leases  could  not  be 
inserted.'^  So  the  powers  must  be  inserted  and  executed  as 
they  are  directed ;  as  where  a  power  was  directed  to  be 
inserted  of  selling  and  exchanging  estates  in  one  county,  and 
all  other  usual  powers,  it  was  held  that  the  powers  could  not 
be  extended  to  estates  in  other  counties.^  And  where  a  tes- 
tator directed  the  insertion  of  a  power  of  making  leases,  and 
otherwise  according  to  circumstances,  and  of  appointing  new 
trustees,  the  court  refused  to  insert  a  power  of  sale  and  ex- 
change, saying  that,  if  where  nothing  is  expressed  nothing 
can  be  implied,  it  is  impossible,  where  something  is  expressed, 
to  imply  more  than  is  expressed,  especially  where  the  will 
notices  what  powers  are  to  be  given.^     But  under  particular 

'  Hill  V.  Hill,  6  Sim.  144  ;  Bedford  v.  Abercorn,  1  M.  &  Cr.  312;  Peake 
V.  Penlington,  2  V.  &  B.  311. 

2  Sampayo  v.  Gould,  12  Sim.  426. 

3  Lindow  v.  Fleetwood,  6  Sim.  152;  Sampayo  v.  Gould,  12  Sim.  426; 
Brewster  v.  Angell,  IJ.  &  W.  628. 

4  Hill  r.  Hill,  6  Sim.  145;  Bedford  v.  Abercorn,  1  M.  &  Cr.  312. 

5  Hill  V.  Hill,  0  Sim.  144. 

6  Higginson  v.  Barneby,  2  S.  &  S.  516. 

'  Pearse  v.  Baron,  Jac.  158.  «  Hill  v.  Hill,  6  Sim.  141. 

*  Brewster  v.  Angell,  1  J.  &  W.  625;  Home  v.  Barton,  Jac.  439. 

480 


CHAP.  XII.]  WHAT    POWERS    WILL    BE    INSERTED.  [§  376. 

directions  as  to  certain  powers,  and  general  directions  that 
other  usual  powers  should  be  inserted,  the  two  directions 
being  separate  and  independent  of  each  other,  it  was  held 
that  a  power  to  appoint  new  trustees  might  be  inserted.^ 
Where  proper  powers  of  making  leases  or  otherwise  were 
directed  to  be  reserved  in  the  settlement  to  the  tenants  for 
life  while  qualified  to  exercise  them,  and  when  disqualified 
to  the  trustees,  and  a  power  of  sale  and  exchange  was  inserted 
in  the  settlement.  Lord  Eldon  held  that  it  was  improperly 
introduced  ;  ^  and  Sir  T.  Plummer  gave  a  similar  decision,  on 
the  ground  that  the  tenant  for  life  ought  not  to  have  a  power 
of  sale  unless  it  was  expressly  directed,  nor  ought  the  trustees 
to  have  such  a  power  in  the  absence  of  an  express  direction.^ 
But  where  there  was  a  settlement  of  stock  with  a  power  of 
varying  the  securities,  and  also  a  covenant  to  settle  real  estate 
upon  the  same  trusts  and  with  like  powers,  it  was  held  that  a 
power  to  sell  and  exchange  was  properly  introduced  in  anal- 
ogy to  the  power  of  varying  the  securities.* 

§  376.  In  drawing  up  the  final  deed  of  settlement  under 
executory  articles  or  a  will,  the  intention  of  the  settlor  is  to 
be  carried  out  if  possible.  If  the  intention  conflicts  with  any 
of  the  rules  of  law,  it  shall  be  executed  so  far,  and  as  near  as 
it  can  be.  The  doctrine  of  cy  pres  applies  to  this  class  of 
executory  trusts.  Thus,  if  a  settlement  is  directed  which 
would  create  a  perpetuity,  the  court  will  order  a  settlement 
which  shall  carry  the  trust  as  far  as  it  can  extend  without 
running  counter  to  the  rules  against  perpetuities.  As  where 
there  was  a  devise  to  a  corporation  in  trust  to  convey  to  A. 
for  life,  and  after  his  death  to  his  first  son  for  life,  and  so  on 
to  the  first  son  of  such  first  son  for  life ;  and,  in  default  of 
male  issue,  then  to  B.  for  life,  and  to  his  son  for  life  after  the 
death  of  B.,  and  so  as  in  the  case  of  A.,  Lord  Cowper  said 

1  Lindow  v.  Fleetwood,  6  Sim.  152. 

2  Brewster  v.  Angell,  IJ.  &  W.  t25. 
'  Home  V.  Barton,  Jac.  437. 

*  William  v.  Carter,  Append,  to  Treatise  on  Powers,  945  (8th  ed.) ; 
Elton  V.  Elton,  27  Beav.  634;  Home  v.  Barton,  Jac.  437. 

VOL.  I.  — 31  481 


§  376.]  EXECUTORY   TRUSTS.  [CHAP.  XII. 

the  attempt  to  create  a  perpetuity  was  vain,  yet  the  direc- 
tions should  be  complied  with,  so  far  as  consistent  with  the 
law,  and  he  directed  that  all  the  sons  already  born  should 
take  estates  for  life  in  succession,  with  limitations  to  unborn 
sons  in  tail.^  But  if  the  devise  is  such  that  it  cannot  be 
carried  into  effect,  in  any  form  approximating  the  intention 
of  the  testator,  without  contravening  the  law  against  per- 
petuities or  remoteness,  the  whole  trust  will  be  void.^ 

1  See  §  383;  Humberston  v.  Humberston,  1  P.  Wms.  332;  2  Vern. 
737;  Pr.  Ch.  455;  Paifitt  v.  Member,  L.  R.  4  Eq.  443;  Peard  v.  Keke- 
•wick,  15  Beav.  173;  Lyddon  v.  Ellison,  19  Beav.  565;  Williams  v.  Teal, 
6  Hare,  239,  and  cases ;  Vanderplank  v.  King,  3  Hare,  1 ;  Monypenny  v. 
Dering,  16  M.  &  W.  418. 

2  Blagrave  v.  Hancock,  16  Sim.  371. 

482 


CHAP.    XIIlJ  DEFINITIONS   OF    A    PERPETUITY.  [§  377. 


CHAPTER   XIII. 

PEEPETUITIES   AND   ACCUMULATIONS. 

§  377.   Definitions  of  a  perpetuity. 

§  378.   Executory  devises  —  springing  and  shifting  uses. 

§  379.   Growth  of  the  rule  against  perpetuities. 

§  380.   Application  of  the  rule.     Indefinite  failure  of  issue. 

§  381.  Applies  to  the  possible  vesting  of  estates  —  not  to  the  actual. 

§  382.  Applies  equally  to  trust  and  legal  estates. 

§  383.  An  equitable  interest  that  may  not  vest  within  the  rule  is  void.    §  23. 

§  384.  Distinction  between  private  trusts  and  charitable  trusts. 

§  385.  A  proper  trust  to  raise  money  to  be  applied  contrary  to  the  rule. 

Making  estates  inalienable. 
§  386.  Equitable  estates  cannot  be  made  inalienable  in  England. 

§§  380  a,  386  b.  How  they  may  be  made  inalienable  in  some  of  the  United  States. 
§  387.  Exception  in  the  case  of  married  women. 

§  388.  How  trusts  can  be  limited,  so  that  cestui  que  trust  cannot  alienate. 

See§  815  a. 
§  389.  Limitation  of  personal   estate  to   such  tenant  in  tail  as  first  attains 

twenty-one. 
§  390.   When  courts  will  alter  trusts  and  when  not. 
§§  391,  392.     Statutes  of  various  States  in  relation  to  perpetuities. 

Accumulations. 
§  393.  Rule  respecting  trusts  for  accumulations. 

§  394.  In  Eng]  .ad  the  rule  was  altered  by  the  Thellusson  Act. 

§  395.  Construction  of  the  Thellusson  Act. 

§  396.  Rule  against  accumulations — when  it  applies  and  when  not. 

§  397.  Application  of  the  income  in  cases  of  illegal  directions  to  accumulate. 

§  398.  Statutes  in  various  States  as  to  accumulations. 

§  399.  Accumulations  for  charitable  purposes. 

§  400.  Accumulations  in  cases  of  life  insurance. 

§  377.  That  the  same  rules  apply  to  trusts  as  to  legal 
estates  is  further  apparent  from  the  rule  against  perpetuities. 
A  perpetuity  has  been  declared  to  be  "  an  estate  unalienable, 
though  all  mankind  should  join  in  the  conveyance ; "  ^  and 
an  executory  devise  is  said  to  be  "  a  perpetuity  as  far  as  it 
goes."  Again,  it  has  been  said,  that  "  a  perpetuity  is  when 
if    all   that    have    interest    join,  yet   they   cannot    pass   the 

1  Scattergood  v.  Edge,  Salk.  229. 

483 


§  377.]  PERPETUITIES    AND    ACCUMULATIONS.       [CHAP.  XIII. 

estate."  ^  These  are  characteristics  of  a  perpetuity.  There 
are  other  descriptions  given,  as  that  "  a  perpetuity  is  a  thing 
odious  in  the  law,  and  destructive  to  the  commonwealth : 
it  would  stop  commerce  and  prevent  the  circulation  of  prop- 
erty." ^  Others  have  described  the  rule  of  law  as  respects 
the  period  of  remoteness,  rather  than  the  thing  itself  called 
a  perpetuity  ;  ^  thus,  "  a  perpetuity  is  a  limitation  tending 
to  take  the  subject  out  of  commerce  for  a  longer  period  than 
a  life  or  lives  in  being  and  twenty-one  years  beyond,  and,  in 
the  case  of  a  posthumous  child,  a  few  months  more,  allowing 
for  the  term  of  gestation."  *  Mr.  Saunders  says :  "  A  per- 
petuity may  be  defined  to  be  a  future  limitation,  restraining 
the  owner  of  the  estate  from  alienating  the  fee-simple  of  the 
property,  discharged  of  such  future  use  or  estate,  before  the 
event  is  determined,  or  the  period  is  arrived,  when  such 
future  use  or  estate  is  to  arise.  If  that  period  is  within  the 
bound  prescribed  by  law,  it  is  not  a  perpetuity."  ^  This 
describes  the  thing  itself,  and  not  the  rule  of  law,  or  the 
length  of  time,  which  may  vary.  Mr.  Lewis  gives  a  fuller 
definition :  "  A  perpetuity  is  a  future  limitation,  whether 
executory,  or  by  way  of  remainder,  and  of  either  real  or  per- 
sonal property,  which  is  not  to  vest,  until  after  the  expira- 
tion of,  or  will  not  necessarily  vest  within,  the  period  fixed 
and  prescribed  by  law  for  the  creation  of  future  estates  and 
interests ;  and  which  is  not  destructible  by  the  persons  for 
the  time  being  entitled  to  the  property,  subject  to  the  future 
limitation,  except  with  the  concurrence  of  the  individual 
interested  under  that  limitation."^  If  such  person  is  not 
yet  in  being,  as  he  may  not  be  after  an  extended  period,  of 

1  Washborne  v.  Downes,  1  Ch.  Ca.  213. 

•'  Duke  of  Norfolk's  Case,  1  Vern.  164. 

3  Stanley  v.  Leigh,  2  P.  Wms.  688. 

*  Rand.  Perp.  48. 

^  Uses  and  Trusts,  204. 

8  Lewis  on  Perpetuity,  164.  Jarman's  Treatise  on  Wills  contains  this 
marked  sentence:  "  Te  teneam  moriens  is  the  dying  lord's  apostrophe  to  his 
manor,  for  which  he  is  forging  these  fetters  that  seem,  by  restricting  the 
dominion  of  others,  to  extend  his  own."  1  Jar.  on  Wills,  226,  note  (ed. 
1861). 

484 


CHAP.  XIII.]  DEVELOPMENT   OF   THE   RULE.  [§  379. 

course  the  estate  cannot  be  conveyed,  even  if  all  the  world 
join  in  the  deed. 

§  378.  Executory  devises  are  a  species  of  testamentary 
dispositions,  allowed  by  courts  of  law,  and  when  properly 
exercised,  they  pass  the  legal  estate  or  interest  to  all  persons 
in  favor  of  whom  the  dispositions  are  made.  They  are  de- 
vises to  take  effect  at  a  certain  time  in  the  future,  or  upon 
a  certain  event,  and  in  favor  of  certain  persons.  Limitations 
by  way  of  springing  or  shifting  uses  are  similar  in  effect, 
except  that  they  are  created  by  deeds  inter  vivos,  and  are 
based  upon  the  statute  of  uses.  Whenever  the  event  hap- 
pens when  a  shifting  or  springing  use  is  to  take  effect,  the 
statute  o'f  uses  vests  the  legal  seizin  and  ownership  in  the 
person  entitled  by  virtue  of  the  use.  These  executory  de- 
vises, and  shifting  and  springing  uses,  must  vest  in  the  per- 
sons intended  to  be  benefited  within  the  time  allowed  by 
law,  or  they  will  be  declared  illegal  and  of  no  effect.  The 
same  rules  apply  in  equity  to  trusts.  In  cases  of  trusts  the 
legal  estate  is  vested  in  certain  trustees,  and  their  heirs  ;  but 
the  beneficial  interest,  or  equitable  estate,  is  given  by  the 
grantor,  testator,  or  settlor  to  such  person  or  persons,  and 
upon  such  terms  and  upon  such  events,  as  he  shall  declare. 
The  settlor  can  change  and  shift  the  beneficial  enjoyment  of 
the  equitable  estate  from  one  person  to  another,  in  the  future, 
in  a  manner  analogous  to  the  limitations  of  springing  or  shift- 
ing uses  under  the  statute  of  uses.^  Courts  of  equity  always 
take  special  care  that  future  estates  or  interests  shall  not  be 
destroyed  by  the  present  user  of  the  property  ;  and  that  the 
limitations  of  future  equitable  interests  shall  not  transcend 
the  limits  assigned  for  the  limitation  of  similar  legal  in- 
terests or  executory  devises,  and  shifting  and  springing  uses 
at  law. 

§  379.  The  rule  against  perpetuities  has  been  gradually 
established  by  judicial  decisions,  and  affords  a  most  notable 
instance  of  the  nice  adaptation  of  the  principles  of  the  com- 

'  Harrison  v.  Harrison,  36  N.  Y.  543. 

485 


§  379.]  PERPETUITIES   AND    ACCUMULATIONS.       [CHAP.  XIII. 

mon  law  to  the  decision  of  a  question  wliich  requires  at  once 
a  due  regard  for  the  rights  of  persons  and  property,  and  a 
careful  consideration  of  these  larger  principles  of  public  policy 
so  essential  to  the  welfare  of  communities  and  States.  For 
public  policy  is  opposed  to  the  perpetual  settlement  of  prop- 
erty in  families  in  such  manner  that  it  is  forever  inalienable, 
or  inalienable  so  long  as  there  may  be  a  person  to  take,  an- 
swering the  designation  of  some  testator  who  died  generations 
before.  The  first  stand  of  the  judges  was  to  allow  only  those 
limitations  which  would  take  effect  at  the  end  of  one  life 
from  the  death  of  the  testator.^  This  was  afterwards  modi- 
fied to  include  two  or  more  lives  in  being,  and  running  at 
the  same  time,  "  or  where  the  candles  are  all  burning  at 
once ; "  for  it  is  plain  that  such  a  space  of  time  is  only  one 
life  in  being,  —  that  of  the  longest  liver.-  The  next  step  was 
much  debated ;  but  it  was  finally  settled,  that  an  executory 
devise  might  be  made  to  vest  at  the  end  of  lives  in  being  and 
twenty-one  years  after,  to  allow  for  the  infancy  of  the  next 
taker,  who  by  reason  of  infancy  could  not  alienate  the  estate.^ 
The  statute  of  10  &  11  Wm.  III.,  c.  16,  having  provided  that 
children  en  ventre  sa  mere,  born  after  their  father's  death, 
should  for  the  purposes  of  the  limitations  of  estates  be 
deemed  to  have  been  born  in  his  lifetime,  a  further  extension 
of  nine  or  ten  months  was  allowed  for  the  period  of  gestation.* 

1  Pells  V.  Brown,  Cro.  Jac.  590;  1  Eq.  Ca.  Ab.  187,  c.  4  (a,  d.  1621)  ; 
see  Snow?;.  Cutler,  1  Lev.  1-35,  t.  Raym.  102;  1  Keb.  151,  752,  800;  2 
Keb.  11,  145,  296,  1  Sid.  153. 

2  Goring  v.  Bickerstaff,  Pollexf.  31 ;  1  Ch.  Ca.  4 ;  2  Freem.  163 
(1664);  2  Harg.  Jarid.  Arg.  46;  Lloyd  v  Carew,  Shower,  P.  C.  137;  Pr. 
Ch.  72. 

3  Taylor  v.  Biddal,  2  Madd.  289  ;  Freem.  243  ;  1  Eq.  Ca.  Ab.  188,  c.  11 
F.  C.  R.  432;  Laddington  v.  Kime,  1  Raym.  203;  Gore  v.  Gore,  2  W.  Kel 
204;  2  P.  Wms.  28;  2  Stra.  948;  Scattergood  v.  Edge,  12  ]\Iod.  277 
Duke  of  Norfolk's  Case,  3  Ch.  Ca.  32;  Ch.  R.  229;  2  Freem.  72;  Pollexf 
223;  Massenburgh  v.  Ash,  1  Vern.  234;  Maddox  v.  Staine,  t.  Talb.  228; 
2  Harg.  Jurid.  Arg.  50. 

4  Stephens  v.  Stephens,  Ca.  t.  Talb.  228;  Forrest,  228;  Goodtitle  v. 
Woods,  Willes,  211 ;  7  T.  R.  103  (n.)  ;  Sheffield  v.  Orrery,  3  Atk.  282; 
Gulliver  i\  Wicket,  1  Wils.  185;  Bullock  v.  Stones,  2  Yes.  521;  Goodman 
V.  Goodright,  2  Burr.  873. 

486 


CHAP.  XIII.]  STATEMENT    OF    THE    RULE.  [§  380. 

The  next  step  was  to  allow  a  period  of  nine  months  for  ges- 
tation at  the  beginning  of  the  term,  as  the  life  in  being  during 
which  the  term  would  run  might  be  that  of  a  child  en  ventre  sa 
mere}  Much  discussion  arose  upon  each  one  of  these  steps.^ 
For  instance,  the  term  of  twenty-one  years,  it  was  said,. could 
not  be  allowed  as  a  term  in  gross,  and  without  reference  to 
the  infancy  of  some  person  interested  in  the  estate ;  this  ques- 
tion was  not  settled  until  Cadell  v.  Palmer,  in  the  House  of 
Lords  in  1833,  when  it  was  finally  determined,  that  twenty- 
one  years  might  be  allowed  as  a  term  in  gross,  without  ref- 
erence to  the  infancy  of  any  person,  but  that  the  period  of  nine 
months  for  gestation  should  be  allowed  in  cases  only  where 
the  gestation  had  commenced  ^  of  some  persons  who,  if  born, 
would  take  an  interest  in  the  estate.  By  such  steps,  by 
imperceptible  degrees,  and  after  two  centuries  of  doubt  and 
litigation,  and  unaided  by  legislation,  the  judges  framed  and 
completed  the  great  rule  against  perpetuities^ 

§  380.  Thus  all  future  legal  estates  "vv^hich  arise  by  way 
of  executory  devise,  conditional  limitation,  or  shifting  and 
springing  uses,  must  vest  within  a  life  or  lives  in  being  at  the 
death  of  the  testator,  and  twenty-one  years ;  and,  in  case 
the  person  in  whom  the  estate  or  interest  should  then  vest 
is  en  ventre  sa  mere,  nine  months  more  will  be  allowed  ;  and 
all  estates  created  as  aforesaid,  and  so  limited  that  they  may 
not  vest  within  that  time,  are  void.^     If  the  estates  are  cre- 

1  Long  V.  Blackall,  7  T.  R.  100;  2  Harg.  Jurid.  Arg.  105;  6  Cru.  Dig. 
488. 

2  Davies  v.  Speed,  12  Mod.  39;  2  Salk.  675;  Holt,  731;  Bostock's  Case, 
Ley,  56;  Roe  v.  Tranmer,  2  Wils.  75;  Lloyd  v.  Carew,  Show.  P.  C.  137; 
Pr.  Ch.  72  ;  2  Harg.  Jurid.  Arg.  36;  Carwardine  v.  Carwardine,  1  Ed.  34; 
Blandford  v.  Thackerell,  2  Ves.  Jr.  241  ;  1  Sand.  Uses  &  Tr.  198  ;  Thellus- 
son  V.  Woodford,  4  Ves.  337 ;  Routledge  v.  Dorrill,  2  Ves.  Jr.  357 ;  Keily 
V.  Fowler,  Wilmot,  -306  ;  Beard  v.  Westcott,  5  Taunt.  393 ;  5  B.  &  A.  801; 
T.  &  R.  25;  Bengough  v.  Edridge,  1  Sim.  173,  271. 

8  Cadell  V.  Palmer,  7  Bligh  (n.  s.),  202;  10  Bing.  140;  1  CI.  &  Fin. 
372;  1  Jarm.  Wills,  222. 

*  Lewis  on  Perpetuity,  pp.  140-162;  1  Powell  on  Devisees  by  Jar. 
389  n. 

^  Proprietors  of  Church  in  Brattle  Square  v.  Grant,  3  Gray,  149 ;  Sears 

487 


§  380.]  PERPETUITIES   AND    ACCUMULATIONS,       [CHAP.  XIII. 

ated  and  limited  by  deeds  inter  vivos,  the  lives  in  being  must 
be  those  persons  who  are  living  at  the  execution  of  the  deed, 
and  not  at  the  death  of  the  grantor  or  settlor.^  And  if  an 
absolute  term  is  taken,  and  no  anterior  term  for  a  life  in 
being  is  referred  to,  such  absolute  term  cannot  be  longer 
than  twenty-one  years ;  ^  but  a  term  of  any  number  of  years 
may  be  taken,  provided  the  term  is  so  connected  with  some 
life  or  lives  in  being  that  the  interest  must  vest  in  some  per- 
son living  at  the  death  of  the  testator  and  at  the  time  of  the 
vesting.^  So  estates  limited  to  take  effect  after  an  indefinite 
failure  of  issue  of  a  living  or  deceased  person  are  void,  for 
the  reason  that  the  issue  of  such  persons  may  not  fail  until 
after  the  term  of  a  life  or  lives  in  being  and  twenty-one 
years  has  expired.*     But  a  limitation  over  in  case  the  heirs 

V.  Russell,  8  Gray,  86;  1  Shep.  Touch.  126;  4  Kent,  Com.  128  and  notes; 

2  Fearne,  Cont.  Rem.  50;  Nightingale  v.  Burrell,  15  Pick.  Ill ;  6  Cru.  Dig. 
tit.  38,  c.  17,  §  23;  Cadell  v.  Palmer,  1  CI.  &  Fin.  372,  423;  Bacon  v. 
Proctor,  T.  &  R.  31  ;  Mackworth  v.  Hinxman,  2  Keen,  658;  Ker  v.  Dun- 
cannon,  1  Dr.  &  War.  509;  Com.,  &c.  v.  De  Clifford,  Id.  215;  Welsh  v. 
Foster,  12  Mass.  97;  Tilbury  v.  Barbut,  3  Atk.  617;  Conklin  v.  Conklin, 

3  Sandf.  Ch.  64;  Tyte  v.  Willis,  Ca.  t.  Talb.  1 ;  Att'y-Gen.  v.  Gill,  2  P. 
Wms.  369;  Nottingham  v.  Jennings,  1  P.  Wms.  25;  Kampf  v.  Jones,  2 
Keen,  756;  Miller  v.  Macomb,  26  Wend.  229;  Tator  v.  Tator,  4  Barb. 
431;  Ring  v.  Hardwicke,  2  Beav.  352;  Ferris  v.  Gibson,  4  Edw.  707; 
Egerton  v.  Brownlow,  4  H.  L.  Ca.  1,  160. 

^  Lewis  on  Perpetuity,  171,  172.  Mr.  Lewis  observes  an  inconsistency 
in  taking  lives  in  being  at  the  death  of  the  testator,  if  the  future  interest 
is  created  by  will,  and  lives  in  being  at  the  date  or  execution  of  the  deed, 
if  such  interests  are  created  by  deed.  But  it  should  be  remembered  that 
a  will  speaks  as  at  the  death  of  the  testator,  while  a  deed  speaks  as  at  the 
time  of  its  execution,  so  that  there  is  no  inconsistency  in  principle.  See 
Tregonwell  v.  Sydenham,  3  Dow,  194;  2  Jar.  on  Wills,  257;  Ed.  1861. 

2  Crooke  v.  De  Vandes,  9  Ves.  197;  Palmer  v.  Holford,  4  Russ.  403; 
Speakman  v.  Speakman,  8  Hare.  180. 

3  Lachlan  v.  Reynolds,  9  Hare,  796. 

^  Randolph  v.  Wendel.  4  Sneed,  046 ;  Van  Vechten  v.  Pearson,  5  Paige, 
512 ;  Van  Vechten  v.  Van  Vechten,  8  Paige,  104 ;  Hone  v.  Van  Schaick,  20 
Wend.  564;  Watkins  v.  Quarles,  23  Ark.  179;  Campbell  v.  Harding,  2 
Rus.  &  My.  390;  Condy  v.  Campbell,  2  CI.  &  Fin.  421,  427;  Harrison  v. 
Harrison,  36  N.  Y.  543;  Allen  v.  Henderson,  49  Pa.  St.  233;  Fisher  v. 
Webster,  L.  R.  14  Eq.  287;  Newill  v.  Newill,  L.  R.  7  Ch.  2.53;  Roe 
V.  Jeffery,  1  T.  R.  589;  Hawley  v.  James,  5  Paige,  ^18;  16  Wend.  61; 
488 


CHAP.  XIII.]         RULE   AS   TO    EQUITABLE   ESTATES.  [§  381. 

of  A.'s  body  living  at  her  death,  die  before  reaching  the  age 
of  twenty-one,  is  not  void  if  A.  leave  no  heirs  of  her  body, 
but  it  takes  effect  at  her  death.^ 

§  381.  It  will  be  observed,  that,  in  determining  whether  a 
particular  devise  is  contrary  to  the  rule  against  perpetuities, 
the  inquiry  is  not  wliether  the  contingency  upon  which  the 
estate  is  to  vest  actually  occurs  within  the  time  limited  by 
the  rule,  but  whether  it  is  possible  that  the  event  may  not 
happen  witliin  the  time.  If  it  is  possible  that  the  event  upon 
which  an  executory  devise  or  shifting  or  springing  use  is  to 
vest  in  some  person  may  not  happen  within  the  time,  the 
executory  estate  is  void,  although  in  fact  the  event  actually 
happens  within  the  time.'-^  And  it  must  further  be  observed, 
that,  if  the  estate  is  to  vest  in  some  persons  within  the  time 
limited,  it  will  not  be  obnoxious  to  the  rule   against  perpetui- 

Miller  v.  Macomb,  2  Wend.  229;  9  Paige,  265;  Lorillavd  v.  Coster,  5 
Paige,  172;  Boehm  v.  Clark,  9  Ves.  580;  Black  v.  McAulay,  5  Jones,  L. 
375;  Jackson  v.  Billinger,  18  Johns.  368;  Fisk  v.  Keen,  35  Me,  349; 
Bramlet  v.  Bates,  1  Sneed,  554;  Jordan  v.  Roach,  32  Miss.  481;  Gray  v, 
Bridgforth,  33  Miss.  312;  Tongue  v.  Nutwell,  13  Md.  415,  Jones  o.  Mil- 
ler, 13  Ind.  337;  Chism  v.  Williams,  29  Mo.  288;  Dodd  v.  Wake,  8  Sim. 
615;  Trafford  v.  Boehm,  3  Atk.  4-10;  EUicombe  v.  Gompertz,  3  Myl.  & 
Cr.  127;  Murray  v.  Addenbrook,  4  Russ.  407;  Hayes  v.  Hayes,  Id.  311; 
Bell  V.  Phyn,  7  Ves.  453;  Thackeray  v.  Sampson,  2  S.  &  S.  214;  Cross  v. 
Cross,  7  Sim.  201;  Bradshaw  v.  Skilbeck,  2  Bing.  N.  C.  182;  Budd  v. 
State,  22  Md.  48;  Johnson  i-.  Currin,  10  Pa.  St.  498;  Bedford's  App.,  40 
Pa.  St.  18;  Deihl  v.  King,  6  Serg.  &  R.  29;  Eichelberger  i'.  Barnitz,  17 
Serg.  &  R.  293;  Rice  v.  Satterwhite,  1  Dev.  &  B.  Eq.  69;  Postell  r. 
Postell,  Bail.  Ch.  390;  Conklin  v.  Conklin,  3  Sandf.  Ch.  64  ;  Brashear  v. 
Marcy,  3  J.  J.  Marsh.  89 ;  Allen  v.  Parkam,  5  Munf.  457;  Mazyck  v.  Van- 
derhost,  Bail.  Ch.  48;  Adams  v.  Chaplin,  1  Hill,  Eq.  265  ;  Lanesborongh 
V.  Fox,  Ca.  t.  Talb.  262;  Bennett  v.  Lowe,  5  Moor.  &  P  485;  Smith  v. 
Dunwoody,  19  Ga.  237;  McRee  v.  Means,  34  Ala.  378;  Powell  v.  Bran- 
don, 24  Miss.  343;  Armstrong  v.  Armstrong,  14  B.  Hon.  333.  As  to  the 
legislation  in  the  various  States  upon  the  failure  of  issue,  see  2  Washburn, 
Real  Prop,  683  (3d  ed.). 

1  Egbert  v.  Schultz,  29  Ind.  242. 

2  Post,  §  393;  Langdon  v.  Simson,  12  Ves.  295;  O'Neill  v.  Lucas,  2 
Keen,  313;  Moore  v.  Mooie,  6  Jones,  Eq.  132;  Welch  v.  Foster,  12  Mass. 
97;  Craig  v.  Hone,  2  Edw.  Ch.  554;  Robinson  v.  Bishop,  23  Ark.  378; 
Sears  v.  Putnam,  102  Mass.  5. 

489 


§  382.]  PERPETUITIES   AND    ACCUMULATIONS.       [CHAP.  XIII. 

ties,  even  if  such  person  may  not  be  entitled  to  the  actual 
enjoyment  of  the  property ;  that  is,  the  rule  as  to  perpetuities 
deals  with  the  vesting  of  the  title,  and  not  with  the  actual  re- 
ception of  the  profits  of  an  estate.^  A  gift  may  be  to  unborn 
children  for  life  and  then  to  an  ascertained  person,  if  the 
vesting  of  the  estate  in  the  latter  is  not  postponed  too  long. 
The  person  who  is  to  take  must  become  certain  within  the 
period,  the  right  of  possession  may  be  postponed  longer.  More- 
over, if  a  certain  estate  is  to  vest  within  the  time  on  a  con- 
tingency which  actually  occurs,  the  devise  is  not  affected  by 
the  fact  that  the  estate  was  limited  to  take  effect  at  another 
time  in  the  event  of  an  alternate  contingency  which  may  be 
too  remote.^  If  two  constructions  may  be  put  upon  a  will, 
one  of  which  will  offend  against  the  rule  against  perpetuities, 
and  the  other  not,  the  construction  which  will  not  offend 
against  the  rule  will  be  adopted,  if  in  other  respects  it  can  be 
sustained.^  And  so  a  will  speaks,  upon  the  subject  of  remote- 
ness, from  the  time  of  the  last  codicil,  and  not  from  the  date 
of  the  original  will.* 

§  382.  The  same  rule  applies  with  equal  force  in  law  and 
equity,  and  trusts  and  beneficial  or  equitable  estates  are  sub- 
ject to  the  same  restrictions.^  A  perpetuity  will  no  more  be 
tolerated  when  it  is  covered  by  a  trust,  than  when  it  displays 
itself  undisguised  in  the  settlement  of  a  legal  estate.^     "  If," 

1  Loring  v.  Blake,  98  Mass.  253 ;  Murray  v.  Addenbrook,  4  Russ.  407 ; 
Phipps  V.  Kelynge,  2  V.  &  B.  57,  n.  (c) ;  Curtis  v.  Lukin,  5  Beav.  147; 
Otis  V.  McLellan,  13  Allen,  339  ;  Yard's  App.,  64  Pa.  St.  95. 

2  Seaver  v.  Fitzgerald,  141  Mass.  401. 

8  Martelli  v.  Holloway,  L.  R.  5  H.  L.  532. 
*  Hosea  v.  Jacobs,  98  Mass.  65. 

5  Duke  of  Norfolk's  Case,  3  Ch.  Ca.  20;  2  Ch.  R.  229;  2  Freem.  72; 
PoUexf.  293;  Massenburgh  v.  Ash,  1  Vern.  254;  Schutter  v.  Smith,  41 
N.  Y.  329  ;  Knox  v.  Jones,  47  N.  Y.  397;  Burrill  v.  Boardraan,  43  N.  Y. 
254.  yEquitas  aequitur  legem,  but  courts  of  equity  have  rather  led  the  law 
courts  in  fashioning  the  rules  against  perpetuities. 

6  Norfolk's  Case,  1  Vern.  164  ;  Humberston  r.  Humberston,  1  P.  Wms. 
332;  Parfitt  v.  Hember,  L.  R.  4  Eq.  443 ;  Sears  v.  Putnam,  102  Mass.  5; 
Lovering  v.  Worthington,  106  Mass.  86. 

490 


CHAP.  XIII.]  RULE    AS    TO    EQUITABLE    ESTATES.  [§  383. 

as  Lord  Guilford  said,  "  in  equity  you  could  come  nearer  to 
a  perpetuity  than  the  common  law  admits,  all  men,  being 
desirous  to  continue  their  estates  in  their  families,  would  set- 
tle their  estates  by  way  of  trust,  which  might  make  well  for 
the  jurisdiction  of  chancery,  but  would  be  destructive  to  the 
commonwealth." 

§  383.  Therefore,  the  creation  of  a  trust  or  equitable  in- 
terest, which  may  not  vest  in  the  object  of  the  trust  within 
the  time  limited  by  law  for  the  vesting  of  legal  estates,  will  be 
nugatory .1  Thus  where  a  testator  devised  his  real  estate  to 
trustees,  in  trust  to  apply  the  rents  to  the  support  of  his  wife, 
and  his  present  and  future  grandchildren,  during  the  life  of 
the  wife,  and  on  her  death  to  convey  the  estates  to  all  his 
present  and  future  grandchildren,  as  they  respectively  at- 
tained the  age  of  twenty -five  years,  to  hold  to  them  and  their 
heirs  as  tenants  in  common,  it  was  held  that  the  trust  to  con- 
vey was  void,  for  the  reason  that  some  of  the  grandchildren 
might  not  become  twenty-five  years  old  until  after  the  expi- 
ration of  the  life  of  the  tenant  for  life,  and  twenty-one  years 
in  addition.2  So  a  testator  cannot  authorize  his  trustees  to 
limit  an  estate  beyond  the  limits  of  the  rule  against  perpetui- 
ties ;  but  the  persons  appointed  to  take  must  be  capable  of 
taking  directly  under  the  will.^  So  where  a  testator  devised 
land  to  a  corporation  in  trust  to  convey  the  same  to  A.  for 
life,  with  remainder  to  his  oldest  son  for  life,  remainder  to 
the  son's  oldest  son  for  life,  and  so  on  in  an  endless  series, 
and  in  default  of  issue  of  A.,  then  to  B.  for  life,  and  remain- 
der to  his  oldest  son  for  life,  and  so  on  in  the  same  manner 
as  to  the  sons  of  A.,  it  was  held  to  be  void  and  vain  as  a  per- 

1  Bailey  v.  Bailey,  28  Hun,  603. 

2  Blagrave  v.  Hancock,  16  Sim.  374;  Dodd  v.  Wake,  8  Sim.  615; 
Broughton  v.  James,  1  Coll.  26 ;  2  H.  L.  Ca.  406 ;  Walker  v.  Slower, 
16  Beav.  365;  Leake  v.  Kobinson,  2  Mer.  303;  Sears  v.  Russell,  8 
Gray,  86. 

3  Marlborough  v.  Godolphin,  1  Ed.  404;  Robinson  v.  Hardcastle,  2  T. 
R.  241,380,  781;  Fonda  v.  Fenfield,  56  Barb.  503;  Barnum  v.  Barnum, 
26  Md.  119.  But  a  power  to  change  trustees  does  not  come  within  the 
principle.     Clark  v.  Piatt,  30  Conn.  282. 

491 


§  385.]  PERPETUITIES   AND   ACCUMULATIONS.       [CHAP,  XIII. 

petuity.^  So  if  any  directions  are  given  which,  if  complied 
with,  must  enforce  a  perpetuity,  they  will  be  void ;  as  when 
a  testator  gave  land  to  a  college,  and  directed  that  the  same 
should  be  leased  forever  to  his  wife's  relations  at  two-thirds 
its  value,  it  was  held  to  be  a  void  direction,  as  tending  to  a 
perpetuity  .2 

§  384.  In  private  trusts  the  beneficial  interest  is  vested 
absolutely  in  some  individual  or  individuals  who  are,  or  with- 
in a  certain  time  may  be,  definitely  ascertained  ;  and  to  whom, 
therefore,  collectively,  unless  under  some  disability,  it  is,  or 
within  the  allowed  limit  will  be,  competent  to  control,  modify, 
or  end  the  trust.  Private  trusts  of  this  kind  cannot  be  ex- 
tended beyond  the  legal  limitations  of  a  perpetuity,  as  before 
stated.  Nor  can  a  settlor  give  his  trustees  a  power  to  appoint 
the  property  subject  to  a  trust,  to  new  trusts  to  arise  at  or 
upon  the  termination  of  the  trusts  created  by  himself.  But 
a  trust  created  for  charitable  or  public  purposes  is  not  subject 
to  similar  limitations,  but  it  may  continue  for  a  permanent  or 
indefinite  time.^ 

§  385.  A  trust  to  raise  a  sum  of  money  out  of  an  estate 
will  be  good  if  properly  limited,  altbough  the  trust  itself  upon 
which  the  money  is  limited  after  it  is  raised  is  void  as  being 
too  remote.     In  such  case,  the  heir  will  take  the  money  as 

1  Humberston  v.  Humberston,  1  P.  Wms.  332;  Parfitt  v.  Hember,  L. 
R.  4  Eq.  442;  Floyer  v.  Bankes,  L.  R.  8  Eq.  115. 

2  Att'y-Gen.  v.  Greenhill,  9  Jur.  (n.  s.)  1307. 

8  Christ's  Hospital  v.  Granger,  1  Mac.  &  G.  460;  Att'y-Gen.  r.Forster, 
10  Ves.  344;  Att'y-Gen.  v.  Newcombe,  14  Ves.  1 ;  Fearon  v.  Webb,  Id. 
19;  Walker  v.  Richardson,  2  M.  &W.  892  ;  Atfy-Gen.  v.  Aspinal,  2  Myl. 
&  Cr.  622  ;  Att'y-Gen.  v.  Heelis,  2  S.  &  S.  70;  Att'y-Gen.  v.  Shrewsbury,  6 
Beav.  224  ;  Gass  v.  Wilhite,2  Dana,  183 ;  Griffin  v.  Graham,  1  Hawks,  131 ; 
Miller  u.  Chittenden,  2  Iowa,  362;  Philadelphia  i'.  Girard,  45  Pa.  St.  26; 
Odell  V.  Odell,  10  Allen,  1;  Yard's  App.,  64  Pa.  St.  95.  The  rule  is 
held  differently  under  the  legislation  of  the  State  of  New  York.  Levy  v. 
Levy,  33  N.  Y.  130;  Bascombe  v.  Albertson,  34  N.  Y.  598;  Beekman  v. 
Bonsor,  23  N.  Y.  308;  Yard's  App.,  64  Pa.  St.  95,  and  see  White  i-.  Hale, 
2  Cold.  77. 

492 


CHAP.  XIII.]  EESTRAINTS   UPON   ALIENATION.  [§  386. 

personal  estate.^  Contingent  remainders  of  trust  estates  do 
jiot  follow  the  strict  rules  of  legal  estates,  but  they  are  made 
to  wait  upon  the  contingency.  In  legal  estates,  the  contin- 
gency must  happen  before  the  time,  or  the  estate  is  gone. 
In  the  contingent  remainders  of  equitable  estates  here  spoken 
of,  if  the  contingency  may  happen  within  the  time,  the  estate 
is  made  to  wait  :  if  it  happens,  the  estate  vests ;  if  it  does  not 
happen,  the  estate  fails.^ 

§  386.  A  legal  estate  in  fee  cannot  be  conveyed  to  a  person 
with  a  provision  that  it  shall  not  be  alienated,  or  that  it  shall 
not  be  subject  to  the  claims  of  creditors  ;  and  so  trusts  can- 
not in  general  ^  be  created  with  a  proviso,  that  the  equitable 
estate,  or  interest  of  the  cestui  que  trust,  shall  not  be  alienated 
or  charged  with  his  debts.^  If  it  is  ascertained  that  an  in- 
terest is  vested  in  the  cestui  que  trust,  the  mode  in  which  or 

1  Ells  V.  Lynch,  8  Bosw.  465;  Buriily  v.  Evelyn,  16  Sim.  290;  Tre- 
gonwell  V.  Sydeuhani,  3  Uow.  194.  But  see  Parson  v.  Snook,  40  Barb. 
144. 

2  Mogg  V.  Mogg,  1  Mer.  654 ;  Monypenny  v.  Deering,  7  Hare,  568 ; 
Alexander  v.  Alexander,  16  C.  B.  59;  Hopkins  ;;.  Hopkins,  1  Atk.  581; 
Testing  v.  Allen,  12  M.  &  W.  279;  Sayer's  Trusts,  L.  R.  6  Eq.  319;  Litt  v. 
Randall,  3  Sm.  &  G.  83;  Hodson  v.  Ball,  14  Sim.  558;  Jee  v.  Audley,  1 
Cox,  324;  Church  in  Brattle  Square  v.  Grant,  3  Gray,  142;  Arnold  v. 
Congreve,  1  R.  &  M.  209  ;  Wilson  v.  Wilson,  4  Jur.  (n.  s.)  1076;  28  L.  J. 
(N.  s.)  95;  Storrs  v.  Benbow,  3  De  G.,  M.  &  G.  390  ;  Cattlin  v.  Brown,  11 
Hare,  372;  Griffith  v.  Pownall,  13  Sim.  393  ;  Merlin  v.  Blagrave,  25  Beav. 
125;  Greenwood  v.  Roberts,  15  Beav.  92;  Dungannon  v.  Smith,  12  CI  & 
Fin.  546;  Seaman  v.  Wood,  22  Beav.  591;  Vanderplank  v.  King,  3  Hare, 
1;  Webster  u.  Boddington,  26  Beav.  128;  Curtis  v.  Lukin,  5  Beav.  147; 
Hardenburg  v.  Blair,  30  N.  J.  Eq  42  ;  Newark  Meth.  Episc.  Ch.y.  Clark, 
41  Mich.  730. 

8  This  is  the  rule  in  England  and  in  some  of  our  States;  but  the  con- 
trary is  strongly  held  in  a  Massachusetts  case  of  the  year  1882.  See 
§  827  a. 

*  Snowdon  v.  Dales,  6  Sim.  524 ;  Green  v.  Spicer,  1  R.  &  M.  395 ; 
Graves  v.  Dolphin,  1  Sim.  66;  Brandon  v.  Robinson,  18  Ves.  429;  AVare  o. 
Cann,  10  B.  &  Cr.  433;  Bradley  i-.  Peixoto,  3  Ves.  324  ;  Hood  v.  Oglander, 
84  Beav.  513  ;  Bird  v.  Johnson,  18  Jur.  976  ;  Blackstone  Bank  v.  Davis,  21 
Pick.  43  ;  Etches  v.  Etches,  3  Drew.  441;  Sparhawk  v.  Cloon,  125  Mass. 
262  ;  Daniels  v.  Eldredge,  Id.  350. 

493 


§  38G  a.]  PERPETUITIES    AND    ACCUMULATIONS.       [CHAP.  XIII. 

the  time  when  he  is  to  reap  the  benefit  is  immaterial.  The 
law  does  not  allow  property,  whether  legal  or  equitable,  to  be 
fettered  by  restraints  upon  alienation.  Therefore,  when  an 
equitable  interest  is  once  vested  in  the  cestui  que  trust,  he  may 
dispose  of  it,  or  it  may  pass  to  his  assignees  by  operation  of 
law,  if  he  becomes  a  bankrupt.  Thus  a  trust  for  a  person's 
support,*  or  to  pay  the  interest  to  a  person  for  life,  as  the 
trustees  may  think  proper,^  or  when  it  shall  become  payable,^ 
or  in  such  sums  or  portions,  and  at  such  times  and  in  such 
manner  as  the  trustees  think  best,*  may  be  exercised  accord- 
ing to  the  discretion  of  the  trustees ;  but  the  bankruptcy  of 
the  cestui  que  trust  puts  an  end  to  the  discretion  of  the 
trustees,  and  vests  the  whole  interest  in  the  assignees ;  and 
this  is  so,  even  where  the  trustees  were  directed  to  pay  as 
they  should  think  proper,  and  at  their  will  and  pleasure  and 
not  otherwise,  so  that  the  cestui  que  trust  should  have  no 
right,  claim,  or  demand,  other  than  the  trustees  should  think 
proper.  The  court  thought,  in  Snowdou  v.  Dales,  that,  taking 
the  whole  instrument  together,  the  cestui  que  trust  had  a 
vested  interest,  that  these  directions  applied  only  to  the  man- 
ner of  enjoyment,  and  that  the  equitable  interest  vested  in 
the  assignees  at  his  bankruptcy.^  The  test  is.  Would  execu- 
tors of  the  cestui  que  trust  have  a  right  to  call  for  any  arrears  ? 
if  so,  the  assignees  would  have  the  right  to  call  for  the  future 
income  or  interest.^ 

§  386  a.  This  doctrine,  that  the  incidents  of  a  legal  title 
attach  to  an  absolute  equitable  interest,  and  that  an  equitable 
estate  for  life  in  any  other  than  a  married  woman  carries  with 
it  the  power  of  alienation  by  the  cestui  que  trust,  and  may  be 
taken  for  the  payment  of  his  debts,  and  that  no  provision 
which  does  not  operate  to  terminate  his  interest  can  protect 

1  Younghusband  v.  Gisborne,  1  Coll.  400. 

2  Green  v.  Spicer,  1  R.  &  M.  395. 

3  Graves  v.  Dolphin,  1  Sim.  66. 

4  Piercy  v.  Roberts,  1  Myl.  &  K.  4. 
^  Snowdon  v.  Dales,  6  Sim,  524. 

6  Re  Sanderson's  Trust,  3  K.  &  J.  497. 

494 


CHAP.  XIII.]  RESTRAINTS    UPON    ALIENATION.  [§  386  a. 

it  from  the  claims  of  creditors,  is  the  well-settled  law  of 
England,  and  has  been  approved  and  applied  in  many  dicta 
and  decisions  in  the  United  States. ^  But  it  has  not  been 
allowed  to  pass  unchallenged,  and  there  is  eminent  authority 
in  the  Federal  and  the  State  courts  for  the  proposition,  that 
the  power  of  alienation  is  not  a  necessary  incident  to  an 
equitable  estate  for  life,  and  that  the  owner  of  property  may, 
in  the  free  exercise  of  his  bounty,  so  dispose  of  it  as  to  secure 
its  enjoyment  to  the  objects  of  his  bounty  without  making 
it  alienable  by  them  or  liable  for  their  debts,  and  that  this 
intention,  clearly  expressed  by  the  founder  of  a  trust,  must 
be  carried   out    by   the    courts.^      In  those  States,  however, 

1  Ante,  §386,  cases  cited  :  Tillinghast  v.  Bradford,  5  R.  I.  205;  Smith 
V.  Moore,  37  Ala.  327 ;  Hallett  v.  Thompson,  5  Paige,  583 ;  Bramhall  v. 
Ferris,  14  N.  Y.  41,  44;  Williams  v.  Thorn,  70  N.  Y.  270;  Nichols  v. 
Levy,  5  Wall.  433,  441;  Sellick  v.  Mason,  2  Barb.  Ch.  79;  McIUvaine 
V.  Smith,  42  Mo.  45 ;  Heath  v.  Bishop,  4  Rich.  Eq.  46 ;  Rider  i;.  Mason, 
4  Sandf.  Ch.  352;  Easterly  v.  Keney,  36  Conn.  18  ;  Nickell  v.  Handley, 

10  Grat.  336  ;  Girard  Life  Ins.  Co.  v.  Chambers,  46  Pa.  St.  485;  Dick.  v. 
Pitchford,  1  Dev.  &  B.  Eq.  480;  Mebane  v.  Mebane,  4  Ired.  Eq.  131; 
Pace  V.  Pace,  7  N.  C.  119.  And  a  trust  made  void  by  an  illegal  suspen- 
sion of  the  power  of  alienation  is  not  made  valid  by  a  power  of  sale  in  the 
trustee,  the  px'oceeds  remaining  subject  to  the  trust.     Garvey  v.  McDavitt, 

11  Hun  (iST.  Y.),  457;  Brewer  v.  Brewer,  Id.  147;  but  see  Braman  v. 
Stiles,  4  Pick.  460. 

'^  Nichols  V.  Eaton,  91  U.  S.  716;  cited  and  approved  in  Hyde  v.  Woods, 
94  U.  S.  523;  Ashurst  v.  Given,  5  Watts  &  S.  323;  Holdship  v.  Patterson, 
7  Watts,  547;  Brown  v.  Williamson,  36  Pa.  St.  338;  Still  v.  Spear,  45 
Pa.  St.  168;  Shankland's  App.,  47  Pa.  St.  113;  Pope  v.  Elliott,  8  B. 
Mon.  56 ;  White  v.  White,  30  Vt.  338;  Campbell  v.  Foster,  35  N.  Y.  361. 
The  argument  in  these  cases  proceeds  upon  the  ground,  that  the  doctrine 
of  the  English  cases  must  rest  upon  the  rights  of  creditors ;  and  it  is 
claimed  that  the  policy  of  the  States  of  tliis  Union  has  not  been  carried  so 
far  in  furtherance  of  creditors'  rights,  that  creditors  can  have  no  claim 
upon  property  which  belonged  to  the  founder  of  the  trust,  and  of  which 
he  had  the  full  and  entire  right  of  disposing  as  he  chose,  for  the  benefit  of 
the  cestui  que  trust,  who  parts  with  nothing  in  return,  and  that  the  intent 
of  the  donor  clearly  expressed  in  disposing  of  his  propei'ty  for  a  lawful 
purpose  must  be  carried  out;  and  the  laws  enacted  in  nearly  or  quite 
every  State,  exempting  property  of  greater  or  less  amounts  in  value  from 
liability  for  the  payment  of  debts,  are  relied  on  as  showing  the  policy  of 
these  States.     It  is  conceded  that  there  are,  however,  limitations,  which 

.495 


§  386  a.]  PERPETUITIES   AND    ACCUMULATIONS.       [CHAP.  XIII. 

where  the  doctrine  of  the  English  cases  lias  been  adopted, 
these  distinctions  and  observations  must  be  borne  in  mind. 
If  the  absolute  equitable  interest  is  in  the  cestui  que  trust,  it 
goes  to  his  assignees  or  creditors  in  case  of  insolvency.  And 
it  may  be  said  that,  if  an  absolute  equitable  interest  is  given 
to  a  cestui  que  trust,  no  restraints  upon  alienation  can  be 
imposed.  But  a  trust  may  be  so  created  that  no  interest 
vests  in  the  cestui  que  trust;  consequently,  such  interest  can- 
not be  alienated,  as  where  property  is  given  to  trustees  to  be 
applied  in  their  discretion  to  the  use  of  a  third  person,  no 
interest  goes  to  the  third  person  until  the  trustees  have  exer- 
cised this  discretion.  So  if  property  is  given  to  trustees  to 
be  applied  by  them  to  the  support  of  the  cestui  que  trust  and 
his  family,  or  to  be  paid  over  to  the  cestui  que  trust  for  the 
support  of  himself  and  the  education  and  maintenance  of  his 
children.  In  short,  if  a  trust  is  created  for  a  specific  pur- 
public  policy  or  general  statutes  impose  upon  dispositions  of  property,  such 
as  those  designed  to  prevent  perpetuities  and  accumulations  in  corpora- 
tions, &c.  But  the  owner  of  property  is  governed  by  the  rules  of  law,  both 
in  the  use  and  enjoyment  and  in  disposing  of  his  property;  and  the  doc- 
trine in  question  seems  to  be  founded  upon  the  rule  that  title  to  property 
includes  the  right  of  alienation  and  liability  for  debts,  and  it  seems 
impossible  that  there  can  be  any  reason  in  public  policy,  under  a  free 
government,  having  for  its  object  the  growth  and  development  of  a  com- 
mercial people;  for  such  a  limitation  of  the  incidents  of  title  to  property 
and  the  argument  from  the  exemption  laws  would  seem  to  be  well  an- 
swered by  the  maxim,  expressio  unius  est  exclusio  allerius.  Many  of  the 
American  cases,  where  the  English  doctrine  has  been  doubted  or  denied, 
seem  to  have  been  cases  of  trusts  for  the  support  and  maintenance  of  the 
cestui  que  trust;  and  a  clearly  manifested  intention  on  the  part  of  the  donor 
that  the  income  of  the  fund  shall  be  devoted  to  that  purpose  may  impose 
a  duty  and  give  a  consequent  power  in  the  trustee,  either  in  his  discre- 
tion or  under  the  direction  of  the  court,  to  pay  over  the  income  only  in 
such  manner  as  shall  insure  its  application  in  accordance  with  the  intent 
of  the  donor  and  protect  it  from  the  claims  of  creditors  and  the  improvi- 
dence of  the  beneficiary,  with  substantially  the  same  result  upon  the  ab- 
solute character  of  the  estate  of  the  cestui  que  trust  as  if  the  instrument 
declaring  the  trust  had  expressly  provided  that  the  payments  should  be 
made  at  the  discretion  of  the  trustee,  —  a  result  more  in  accordance  with 
the  rules  of  interpretation  than  a  strict  adherence  to  a  definition  to  the  ex- 
tent of  defeating  the  accomplishment  of  the  benefit  intended  by  the  donor. 
496. 


CHAP.  XIII,]  RESTRAINTS   UPON   ALIENATION.  [§  386  h. 

pose,  and  is  so  limited  that  it  is  not  repugnant  to  the  rule 
against  perpetuities  and  is  in  other  respects  legal,  neither  the 
trustees,  nor  the  cestui  que  trust,  nor  his  creditors  or  assignees, 
can  divest  the  property  from  the  appointed  purposes.^  Any 
conveyance,  whether  by  operation  of  law  or  by  the  act  of  any 
of  the  parties,  which  disappoints  the  purposes  of  the  settlor 
by  divesting  the  property  or  the  income  from  the  purposes 
named,  would  be  a  breach  of  the  trust.  Therefore  it  may  be 
said,  that  the  power  to  create  a  trust  for  a  specified  purpose 
does,  in  some  sort,  impair  the  power  to  alienate  property. 

§  386  b.  In  the  cases  referred  to  in  the  last  section,  it  will 
be  perceived  that  the  trust  may  be  for  a  particular  purpose, 
and  that  purpose  may  not  be  exclusively  for  the  benefit  of 
the  primary  cestui  que  trust ;  as  where  an  estate  was  vested 
in  trustees  by  a  marriage  settlement  in  trust  to  apply  the 
annual  produce  thereof  "  for  the  maintenance  and  support  of 
A.  B.,  his  ivife  and  cliildren^''  it  was  held  that  the  wife  and 
children  were  to  be  supported,  and  that  A.  B.  was  entitled 
to  the  surplus  after  their  support,  and  that  such  surplus 
would  go  to  his  assignees  in  case  of  his  bankruptcy :  ^  but 
when  the  trustees  have  an  arbitrary  power  of  applying  such 
part  of  an  income  as  they  see  fit  to  support  of  a  cestui  que 
trust,  and  for  no  other  purpose,  it  was  held  that  nothing 
passed  to  his  assignees.^  And  so  if  the  trustees  are  to  apply 
the  money  to  the  support  of  one  and  his  wife  and  children, 
nothing  tangible  can  pass  to  the  assignees  ;  ^  but  if  the  power 

1  Rife  V.  Geyer,  59  Pa.  St.  393;  Wells  v.  McCall,  64  Pa.  St.  207; 
White  V.  White,  30  Vt.  342;  Clute  v.  Bool,  8  Paige,  83;  Bramhall  v. 
Ferris,  14  N.  Y.  44;  Doswell  v.  Anderson,  1  P.  &  H.  (Va.)  185;  Raikes 
V.  Ward,  1  Hare,  445;  Crockett  v.  Crockett,  Id.  451  ;  Wetmore  v.  Trus- 
low,  51  N.  Y.  338;  Graff  v.  Bonnett,  31  N.  Y.  9 ;  Locke  v.  Mabbett,  3 
Court  of  App.  Dec.  71;  Blackstone  Bank  v.  Davis,  21  Pick.  42;  Etches  v. 
Etches,  3  Drew.  441;  Genet  v.  Beekman,  45  Barb.  382;  Chase  v.  Chase, 
2  Allen,  101;  Loring  v.  Loring,  100  Mass.  340;  Cole  u.  Littlefield,  35 
Me.  439.     See  ante,  §  117,  and  notes. 

2  Page  V.  Way,  3  Beav.  20. 

8  Twopenny  v.  Peyton,  10  Sim.  487 ;  Re  Sanderson's  Trust,  3  K.  &  J. 
497;  Lordi).  Bun,  2Y.  &  C.  Ch.  Ca.  98;  Holmes  u.  Penney,  3  K.  &  J.  90. 
*  Godden  v.  Crowhurst,  10  Sim.  642;  Kearsley  v.  Woodcock,  3  Hare, 
VOL.  I.  — 32  497 


§  388.]  PERPETUITIES   AND    ACCUMULATIONS,       [CHAP.  XIII. 

is  not  arbitrary,  but  is  imperative  on  the  trustees  to  pay  over 
the  income  for  the  support  of  the  cestui  que  trust  and  another 
person  or  persons,  the  assignees  are  entitled  to  take  a  part 
upon  the  insolvency  of  one,  or  the  whole  in  the  event  of  the 
death  of  the  others.^ 

§  387.  There  is  a  further  exception  to  the  general  rule, 
that  an  equitable  interest,  without  the  right  to  alienate,  can- 
not be  created  ;  and  that  is  in  the  case  of  trusts  created  for 
married  women.  It  is  not  unusual  to  create  trusts  for  mar- 
ried women,  and  give  such  women  all  the  rights  of  unmarried 
women  over  their  separate  equitable  interests,  and  at  the  same 
time  to  insert  a  clause  against  their  anticipating  the  income, 
by  which  means  they  are  unable  to  assign  or  transfer  it,  or 
in  any  way  receive  any  benefit  from  the  property,  except  by 
receiving  the  income,  as  it  becomes  due  and  payable.^ 

§  388.  But  though  a  settlor  cannot  put  a  restraint  upon 
alienation,  or  exclude  the  rights  of  creditors,  he  may  settle 
property  upon  another  in  such  manner  that  it  cannot  be  alien- 
ated, and  creditors  and  assignees  cannot  take  it.  But  in  such 
case  the  cestui  que  trust  must  lose  the  use  of  the  property  in 
case  of  his  bankruptcy.     Thus  A.  may  settle  property  upon 

B.  until  alienation  or  bankruptcy,  with  a  limitation  over  to 

C.  upon  either  event.  Or  A.  may  give  real  or  personal  estate 
to  B.  with  a  proviso^  that,  on  alienation  or  bankruptcy,  it  shall 
shift  over  to  C.^     But  a  clause  divesting  the  property  upon 

185;  Wallace  v.  Anderson,  16  Beav.  533;  Hall  v.  Williams  et  al.  120 
Mass.  344. 

^  Rippon  V.  Norton,  2  Beav.  63;  Wallace  v.  Anderson,  16  Beav.  533; 
Perry  v.  Roberts,  1  Myl.  &  K.  4. 

■■^  Pickering  v.  Coates,  10  Phila.  65 ;  Ash  v.  Bowen,  Id.  96.  See  this 
matter  stated  post,  chap,  on  Trusts  for  Married  Women,  §§  670,  671. 

3  Muggeridge  Trusts,  Johns.  Ch.  (Eng.)  625;  Kearsley  r.  Woodcock, 
3  Hare,  185;  Joel  v.  :Mills,  3  K.  &  J.  458;  Large's  Case,  2  Leon.  82; 
Churchill  v.  Marks,  1  Coll.  441 ;  Sharpe  v.  Cossent,  20  Beav.  470;  Shee  v. 
Hale,  13  Ves.  404;  Lewes  v.  Lewes,  6  Sim.  304;  Cooper  v.  Wyatt,  5  Madd. 
482;  Lockyer  v.  Savage,  2  Stra,  947;  Yarnold  v.  Moorhouse.  1  R.  &  M. 
364;  Stephens  v.  James,  4  Sim.  499;  Ex  parte  Oxley,  1  B.  &  B.  257, 
498 


CHAP.  XIII.]  LEGISLATION.  [§  389. 

alienation  alone,  will  embrace  only  the  voluntary  acts  of  the 
party,  and  will  not  apply  to  transfers  by  operation  of  law,  as 
by  bankruptcy,^  unless  it  was  intended  that  the  clause  should 
have  so  wide  a  signification.^  Nor  will  a  power  to  confess 
judgment  be  a  voluntary  act  of  alienation,  unless  it  was  within 
the  contemplation  of  the  parties  ;  ^  nor  will  the  marriage  of  a 
woman  be  an  alienation  of  her  choses  in  action.'^  So  if  there 
is  a  clause  against  anticipation,  an  assignment  of  arrears 
already  accrued,  and  not  of  future  income,  is  good.^  An 
assignment  in  general  words  will  not  embrace  property  which 
would  be  forfeited  by  such  assignment.^ 

§  389.  If  a  testator  devises  his  real  estate  in  strict  settle- 
ment, and  then  gives  his  personal  estate  to  such  tenant  in 
tail  as  first  attains  the  age  of  twenty-one,  if  the  tenant  in  tail 
is  not  of  age  at  the  testator's  death,  the  event  may  never 
occur,  and  the  trust  is  void.  But  if  the  personal  property  is 
given  upon  trusts  that  correspond  to  the  settlement  of  the 
real  estate,  with  a  proviso  that  it  should  not  vest  absolutely 
in  any  tenant  in  tail  unless  he  attained  twenty-one,  the  trust 
is  good." 

Rochford  v.  Hackman,  9  Hare,  475;  Ex  parte  Hinton,  14  Ves.  598;  Stan- 
ton V.  Hal],  2  R.  &  M.  175;  Hall  v.  Williams,  120  Mass.  344;  Nichols  o. 
Eaton,  91  U.  S.  716. 

1  Lear  v.  Leggett,  2  Sim.  479;  1  R.  &  M.  690;  Wilkinson  v.  Wilkinson, 
G.  Coop.  259;  3  Swanst.  528;  Whitfield  v.  Prickett,  2  Keen,  608. 

2  Cooper  V.  Wyatt,  5  Madd.  482 ;  Dommett  v.  Bedford,  6  T.  R.  684. 

8  Avison  V.  Holmes,  1  John.  &  H.  530 ;  Barnet  v.  Blake,  2  Dr.  &  Sm. 
117. 

*  Bonfield  v.  Hassell,  32  Beav.  217. 

5  Re  Stulz  Trusts,  4  De  G.,  M.  &  G.  404;  1  Eq.  R.  334. 

®  Ee  Waley's  Trust,  3  Eq.  R.  380.  And  as  to  the  general  effect  of 
proceedings  in  insolvency  and  bankruptcy,  and  of  annulling  the  proceed- 
ings, see  Lloyd  v.  Lloyd,  1  W.  N.  .307;  Pym  v.  Lockyer,  12  Sim.  394; 
Brandon  v.  Aston,  2  Y.  &  C.  Ch.  24;  Chm'chill  v.  Marks,  1  Coll.  441; 
Townsend  v.  Early,  34  Beav.  23;  Martin  v.  Marghara,  14  Sim.  230;  Gra- 
ham V.  Lee,  23  Beav.  388. 

''  Gosling  V.  Gosling,!  De  G.,  J.  &  S.  1,  17,  Am.  ed.  Perkins,  note  1; 
s.  c.  L.  R.  1  H.  L.  279;  Lincoln  v.  Newcastle,  12  Ves.  218;  Dungannon' 
V.  Smith,  12  CI.  &  Fin.  546;  Scarsdale  v.  Curzon,  1  John.  &  H.  40. 

499 


§  391.]  PERPETUITIES   AND    ACCUMULATIONS.       [CHAP.  XIII. 

§  390.  Thus  where  trusts  are  complete  in  themselves,  or 
are  what  are  termed  executed  trusts,  courts  will  not  mould, 
alter,  or  put  any  peculiar  construction  on  them,  in  order  to 
avoid  or  evade  the  rule  against  perpetuities.  The  ordinary 
rules  of  construction  will  be  adhered  to  without  regard  to  the 
consequences  of  avoiding  trusts  that  are  illegal.^  But  in  cases 
of  executory  trusts,  where  trustees  are  directed  to  settle  a 
formal  deed  of  trust  upon  terms  which  are  faintly  and  incom- 
pletely sketched,  another  rule  will  be  applied.  If  from  the 
articles  or  will  it  appears  that  a  perpetuity  was  intended,  that 
must  be  the  end  of  the  trust,  whether  executed  or  executory. 
But  if  the  direct  object  of  the  limitations  suggested  in  the 
articles  is  not  the  creation  of  a  perpetuity,  and  if  the  remote- 
ness is  confined  to  some  of  the  distant  links  only  in  the  chain 
of  limitations,  equity,  in  decreeing  the  settlement,  will  carry 
into  effect  the  general  intention,  especially  if  the  expression 
of  that  intention  clearly  indicates  that  the  limitations  are  to 
be  carried  out  so  far  as  the  law  allows.^ 

§  391.  In  some  of  the  States,  legislation  has  been  had 
whereby  the  period  within  which  estates  must  vest  is  short- 
ened. Thus  in  Alabama  ^  estates  may  be  given  to  wife  and 
children,  or  children  only,  severally,  successively,  and  jointly, 

^  Blagrave  v.  Hancock,  16  Sim.  371. 

2  Ante,  §  376;  Bankes  v.  Le  Despencer,  10  Sim.  576;  7  Jur.  210;  11 
Sim.  508;  Lincoln  v.  Newcastle,  3  Ves.  387;  12  Ves.  218;  Phipps  v. 
Kelynge,  2  V.  &  B.  57  n.  ;  Woolmore  v.  Burrows,  1  Sim.  512;  Dorchester 
i;.  Effingham,  10  Sim.  587,  588  n.;  3  Beav.  ISO;  Kampf  r.  Jones,  2  Keen, 
756;  Tregonwell  v.  Sydenham,  3  Dow,  194 ;  1  Jar.  on  Wills,  235  n.;  see 
argument  of  Sir  Edward  Sugden  in  Bengough  v.  Edridge,  1  Sim.  226,  227; 
Mogg  V.  Mogg,  1  Mer.  654;  1  Jar.  on  Pow.  Dev.  414,  and  note ;  Trevor  v. 
Trevor,  13  Sim.  108;  1  H.  L.  Ca.  239;  Tennent  v.  Tennent,  Drury,  161; 
Boydell  v.  Golightly,  14  Sim.  346;  White  v.  Briggs,  15  Sim.  17;  Vander- 
plank  V.  King,  3  Hare,  5;  Monypenny  v.  Deering,  7  Hare,  568;  2  De  G., 
M.  &  G.  145;  16  M.  &  W.  418;  Hale  v.  Pew,  25  Beav.  335;  Humberston 
V.  Humberston,  2  Vern.  737;  1  P.  Wms.  332;  Pr.  Ch.  455;  Deerhurst  v. 
St.  Albans,  5  Madd.  232;  Jervoise  v.  Northumberland,  1  J.  &  W.  559; 
Blackburn  v.  Stables,  2  V.  &  B.  367;  Rowland  v.  Morgan,  2  Phill.  763; 
Parfitt  V.  Hember,  L.  R.  4  Eq.  443. 

3  Code,  1852,  §  1309. 

500 


CHAP.  XIII.]  LEGISLATION.  [§  391. 

and  to  the  heirs  of  the  body  of  the  survivor,  if  they  come  of 
age,  and  in  default  thereof  over.  But  gifts  to  others  than 
wife  and  children  must  vest  within  the  term  of  three  lives  in 
being,  and  ten  years  thereafter.  In  Connecticut,^  no  estate 
can  be  given  by  deed  or  will  to  any  person  or  persons,  except 
such  as  are  in  being,  or  to  the  immediate  issue  or  descendants 
of  such  as  are  in  being  at  the  time  of  making  the  deed  or 
will.  In  New  York,^  Michigan,^  Minnesota,*  and  Wisconsin,^ 
the  absolute  power  of  alienation  cannot  be  suspended,  by  any 
limitation  or  condition,  for  a  longer  period  than  the  continu- 
ance of  two  lives  in  being  at  the  creation  of  the  estate,  except 
that  a  contingent  remainder  in  fee  may  be  limited  on  a  prior 
remainder  in  fee  to  take  effect  in  the  event  that  the  persons 
to  whom  the  first  remainder  is  limited  shall  die  under  the 
age  of  twenty-one  years,  or  upon  any  other  contingency  by 
which  the  estate  of  such  persons  may  be  determined  during 
their  minority.  Successive  limitations  of  estates  for  life  are 
not  valid  except  to  persons  in  being  at  the  time  of  their  crea- 
tion. And  if  a  remainder  is  limited  on  more  than  two  succes- 
sive estates  for  lives  in  being,  all  the  subsequent  successive 
estates  are  void  ;  and  upon  the  death  of  those  two  persons 
the  remainder  will  take  effect  as  if  no  other  life-estate  had 
been  created.  No  remainder  can  be  created  for  the  life  of  a 
person  other  than  the  grantee  or  devisee  of  such  estate,  unless 
such  remainder  is  in  fee ;  nor  can  a  remainder  be  created 
upon  such  an  estate  in  a  term  of  years,  unless  it  is  for  the 
whole  residue  of  the  term.  If  more  than  two  lives  are  named, 
the  remainder  takes  effect  upon  the  death  of  the  two  persons 
first  named,  in  the  same  manner  as  if  no  other  persons  had 
been  named  or  lives  introduced.  A  contingent  remainder 
cannot  be  limited  on  a  term  for  years,  unless  the  contingency 

1  Comp.  Stat.  1854,  p.  630,  §  4. 

2  2  Rev.  Stat.  (4th  ed.)  133,  §§  15-20;  Knox  v.  Jones,  47  N.  Y.  398; 
Wood  V.  Wood,  5  Paige,  590;  Amory  v.  Lord,  5  Seld.  503;  Schutter  v. 
Smith,  41  N.  Y.  328;  Gott  v.  Cook,  7  Paige,  531;  Van  Vechten  v.  Van 
Vechten,  8  Paige,  104. 

8  Comp.  Laws,  18.57,  c.  8.5,  §§  15-26. 
*  Comp.  Stat.  1859,  c.  31,  §§  15-26. 
6  Rev.  Stat.  1858,  c.  83,  §§  15-26. 

,^01 


§  392.]  PERPETUITIES    AND    ACCUMULATIONS.       [CHAP.  XIII. 

on  which  it  is  limited  is  such  that  it  must  vest  during  the 
continuance  of  two  lives  in  being  at  the  creation  of  such 
remainder,  or  at  the  termination  of  such  term  of  years.  Thus 
a  limitation  to  A.  for  life,  remainder  to  B.  for  life,  remainder 
to  C.  and  D.,  and  the  survivor  of  them,  is  within  the  statute, 
and  void  as  to  C.  and  D.  as  a  limitation  upon  more  than  two 
lives  in  being.^  If  the  power  of  alienation  is  suspended  for 
an  indefinite  period,  the  trust  is  void.^ 

§  392.  In  Ohio,'^  no  estate  can  be  limited  to  any  person  or 
persons,  except  they  are  in  being,  or  to  the  immediate  de- 
scendants of  such  as  are  in  being  at  the  time  of  making  of 
the  deed  or  will.  In  Mississippi,^  fees-tail  are  prohibited, 
and  converted  into  fees-simple  ;  and  estates  may  be  limited 
in  succession  to  two  donees  in  being,  and  to  the  heirs  of  the 
body  of  the  remainder-man,  and  in  default  thereof  to  the 
heirs  of  the  donor  in  fee.  In  Indiana,^  the  power  of  selling 
lands  cannot  be  suspended,  by  any  limitation  or  condition, 
longer  than  the  continuance  of  any  number  of  specified  lives 
in  being  at  the  time  of  the  creation  of  the  estate  ;  except 
that  contingent  remainders  in  fee  may  be  limited  on  a  prior 
remainder  in  fee,  to  take  effect  in  the  event  that  the  person 
or  persons  to  whom  the  first  remainder  is  limited  shall  be 
under  the  age  of  twenty-one  years,  or  upon  any  other  con- 
tingency by  which  the  estate  of  such  person  or  persons  may 
be  determined  during  their  minorities.  In  Kentucky,^  the 
absolute  power  of  alienation  cannot  be  suspended  by  limita- 
tions or  conditions  for  a  longer  period  than  during  a  life  or 
lives  in  being  and  twenty-one  years  and  ten  months ;  which 
is  substantially  the  common-law  rule  in  the  form  of  a  statute. 
So,  in  lowa,'^  alienation  cannot  be  suspended  for  a  period 
longer  than  lives  in  being  and  twenty-one  years.     In  Arkan- 

1  Arnold  r.  Gilbert,  5  Barb.  190. 

2  Donaldson  v.  American  Tract  Soc,  1  N.  Y.  Sup.  Ct.  Add.  15: 
Leonard  v.  Bell,  1  N.  Y.  Sup.  Ct.  608;  Kiah  v.  Grenier,  Id.  388. 

8  Rev.  Stat.  1854,  c.  42,  §  1. 

*  Code,  1857,  c  38,  §  1,  art.  3;  see  Jordan  v.  Roach,  ;j2  Miss.  481. 

5  Rev.  Stat.  1852,  p.  2:]8,  §  40. 

«  Rev.  Stat.  c.  80,  §  34.  ">  Code,  1851,  p.  1191. 

502 


CHAP.  XIII.]  ACCUMULATIONS.  [§  394. 

sas  ^  and  Vermont,^  their  constitutions  declare  that  a  per- 
petuity shall  not  be  allowed.  What  is  a  perpetuity  in  those 
States  would  necessarily,  in  the  absence  of  legislation,  be 
determined  by  the  common-law  rule.  So  it  is  conceived  that 
the  common  law  prevails  in  those  States.  In  all  the  other 
States,  except  perhaps  Louisiana,  where  the  rules  of  prop- 
erty were  derived  from  the  civil  law  or  the  code  of  France, 
and  California,  where  they  were  derived  from  the  Spanish 
laws,  the  common-law  rules  as  to  perpetuities  are  in  force, 
and  trusts  that  are  contrary  to  these  rules  are  void. 

§  393.  Intimately  connected  with  this  matter  is  the  rule 
against  accumulations.  Trusts  for  accumulation  must  be 
strictly  confined  within  the  limits  of  the  rule  against  perpetu- 
ities. It  has  been  seen  that  a  settlor  may  restrain  the  aliena- 
tion of  property  for  a  life  or  lives  in  being  and  twenty-one 
years  ;  and,  in  case  the  beneficiary  is  then  en  ventre  sa  mere, 
an  addition  of  nine  months  may  be  made  to  the  term.  In 
analogy  to  this  rule,  a  settlor  may  prevent  the  beneficial  en- 
joyment of  property  for  the  same  length  of  time,  by  directing 
an  accumulation  of  the  interest,  income,  rents,  or  profits.^ 
If  a  trust  for  accumulation  may  possibly  exceed  this  limit,  it 
is  wholly  void,  and  it  cannot  be  cut  down  to  the  legal  limit. 

§  394.  The  above  is  the  rule  where  there  are  no  statutes 
to  control  it.  Trusts,  by  which  the  vesting,  alienation,  or 
enjoyment  of  property  is  postponed  beyond  the  legal  period, 
are  considered  as  contrary  to  public   policy,  and  therefore 

1  Const,  art.  2,  §  19. 

2  Const,  pt.  2,  §  36 ;  Gen.  Stat.  1863,  pp.  2.5,  446. 

8  Fosdick  V.  Fosdick,  6  Allen  43 ;  Hooper  v.  Hooper,  9  Cush.  122 ; 
Thorndike  v.  Loring,  15  Gray,  391 ;  Boughton  v.  James,  1  Coll.  26;  1  H. 
L.  Ca.  406;  Southampton  v.  Hertford,  2  V.  &  B.  54;  Marshall  v.  Hollo- 
way,  2  Swanst.  432;  Curtis  v.  Lukin,  5  Beav.  147;  Brown  v.  Stoughton, 
14  Sim.  369;  Scarisbrooke  v.  Skelmersdale,  17  Sim.  187;  Turvin  v.  New- 
come,  3  K.  &  J.  16;  Craig  v.  Craig,  3  Barb.  Ch.  76;  Mathews  v.  Keble, 
L.  R.  1  Eq.  467;  L.  R.  3  Ch.  691;  Killam  v.  Allen,  52  Barb.  605;  Dutch 
Reform  Church  v.  Brandon,  Id.  228;  AVhite  v.  Howard,  Id.  294;  Hillyard 
V.  Miller,  10  Barr,  326. 

503 


§  395.]  THELLUSSON   ACT.  [CHAP.  XIII. 

Toid ;  and  as  courts  cannot  substitute  legal  directions  in  the 
place  of  illegal  provisions  in  a  will,  the  whole  fails  if  there 
is  an  illegal  gift  for  accumulation.  The  period  during  which 
accumulation  might  go  on  was  found  to  be  inconvenient  in 
case  a  settlor  availed  himself  of  all  its  terms.  Thus  Mr. 
Thellusson,  by  an  ingenious  and  skilful  use  of  these  legal 
limitations,  constructed  a  will  by  which  a  fortune  of  £600,000 
was  left  to  accumulate  for  some  person  to  come  into  existence 
in  the  future,  answering  a  certain  description,  while  mere  pit- 
tances were  given  to  his  children  and  grandchildren  then  in 
being.  It  was  calculated  that  accumulations  might  go  on 
under  this  will  from  seventy-five  to  one  hundred  years,  and 
that  the  gross  accumulation  would  amount  to  a  sum  from 
£32,000,000  to  £100,000,000,  according  to  the  time  during 
which  it  might  accumulate.  The  will  was  most  carefully 
considered  and  discussed  in  all  the  courts,  but  it  was  found 
to  be  drawn  carefully  within  the  law,  and  all  its  provisions 
were  sustained.^  Thereupon  Parliament  interfered,  and 
passed  a  statute,  usually  called  the  Thellusson  Act,  which 
curtailed  the  period  during  which  accumulations  might  be 
directed.2  This  act  established  four  alternate  periods  during 
which  accumulations  might  be  made:  (1)  The  life  of  the 
settlor ;  (2)  Twenty-one  years  from  the  death  of  the  settlor ; 
(3)  The  minority  or  minorities  of  any  persons  living  at  the 
death  of  the  settlor ;  (4)  During  the  minority  or  minorities 
of  any  person  or  persons  who,  if  of  full  age,  would  be  entitled 
under  the  limitations  to  the  income  which  is  directed  to  be 
accumulated. 

§  395.  It  has  been  determined  that  these  four  periods  are 
alternative,  and  not  cumulative,  and  that  accumulations  must 
be  confined  to  one  of  them.^  If  the  accumulation  does  not 
begin  until  several  years  after  the  testator's  death,  it  must 

1  Thellusson  v.  Woodford,  4  Yes.  227;  11  Yes.  112;  4  Kent,  Com. 
285. 

2  Stat.  39  and  40  Geo.  III.  c.  98. 

3  Ellis  V.  Maxwell,  3  Beav.  587;  Rosslyn's  Trust,  16  Sim.  391;  Wilson 
V.  Wilson,  1  Sim.  (n.  s.)  288. 

504 


CHAP.  XIII.]  ACCUMULATIONS.  [§  395. 

cease  at  the  end  of  twenty-one  years  from  bis  death,i  exclud- 
ing the  day  of  his  death.^  The  act  further  directs,  that  any 
accumulation  directed  contrary  to  its  provision  shall  be  void. 
By  these  words  accumulations  directed  contrary  to  the  stat- 
ute are  not  wholly  void,  as  at  common  law,  but  only  the 
excess  beyond  the  time  allowed  by  the  statute  is  void.^  Mr. 
Lewis  calls  this  a  "  rule  of  construction  entirely  novel."  ^  It 
is  also  said,  that  the  act  is  one  of  restraining  force,  and  can- 
not give  validity  to  trusts  for  accumulation,  which  are  in 
themselves  void,  as  transgressing  the  common-law  limits  of 
a  perpetuity.  Thus  a  direction  to  accumulate  beyond  the 
time  allowed  by  the  statute,  but  within  the  time  allowed  by 
the  common  law,  will  be  good  for  the  actual  time  allowed 
by  the  statute,  and  void  only  for  the  excess ;  but  a  direction 
to  accumulate,  beyond  the  rule  of  common  law  against  per- 
petuity, is  wholly  void  notwithstanding  the  statute.  Con- 
sequently, in  England  a  trust  for  accumulation  may  verge 
almost  upon  the  outside  of  the  limit  of  a  perpetuity,  and  yet 
be  void  only  for  the  excess  beyond  the  time  established  in 
the  statute  ;  but  if  a  trust  for  accumulation  transcends  in  the 
slightest  degree  the  boundary  of  a  perpetuity,  it  is  wholly 
void,  and  will  fail  without  regard  to  the  actual  course  of 
events.^ 

1  Nettleton  i^.  Stephenson,  3  De  G.  &  Sm.  366;  Att'y-Gen.  v.  Poulden, 
3  Hare,  555;  Webb  v.  Webb,  2  Beav.  493 ;  Shaw  v.  Rhodes,  1  Myl.  &  Cr. 
135. 

2  Toder  v.  Sansom,  1  Brown,  P.  C.  468;  Lester  z?.  Garland,  15  Ves. 
248  p  East  v.  Lowndes,  11  Sim.  434.  And  the  day  of  the  death  was  ex- 
cluded by  the  rules  of  the  common  law,  independently  of  the  statute. 
Toder  v.  Sansom,  ut  supra. 

8  Griffiths  V.  Vere,  9  Ves.  127  :  Palmer  v.  Holford,  4  Russ.  403  ;  Lang- 
don  V.  Simson,  12  Ves.  295;  Rosslyn's  Trust,  16  Sim.  391;  Freke  v.  Lord 
Carbery,  L.  R.  16  Eq.  461.  There  are  a  great  number  of  cases  upon  this 
construction,  but  they  are  not  important  in  America.  The  reader  can  see 
1  Jarm.  on  Wills,  286;  Hill  on  Trustees,  394;  Lade  v.  Holford,  Amb. 
479;  Eyre  v.  Marsden,  2  Keen,  564;  4  Myl.  &  Cr.  231;  Marshall  v.  Hollo- 
way,  3  Swanst.  432 ;  Southampton  v.  Hertford,  2  V.  &  B.  61 ;  Haly  v. 
Bannister,  4  Madd.  277.  ■*  Lewis  on  Per.  593. 

^  Lewis  on  Per.  593,  594  ;  Hargrave,  Accum.  91,  110;  1  Pow.  on  Devi, 
by  Jarm.  419  ;  2  Prest.  Abst.  183. 

505 


§  397.]  PERPETUITIES   AND    ACCUMULATIONS.       [CHAP.  XIII. 

§  396.  If  a  good  bequest  is  made  to  a  devisee,  subject  to 
an  illegal  or  void  direction  to  accumulate,  as  where  such 
direction  is  independently  engrafted  upon  the  devise,  and 
can  be  stricken  out  without  destroying  the  substantial  form 
of  the  gift,  the  gift  may  be  held  to  be  good,  but  the  direction 
to  accumulate  void.^  But  where  the  gift  is  limited  to  take 
effect  after  a  prescribed  period  of  accumulation,  and  out  of 
the  accumulated  fund,  as  part  of  tlie  subject-matter  of  the 
gift,  and  such  period  of  accumulation  is  illegal  or  too  remote, 
the  gift  itself  will  fail,  as  the  form  of  the  gift  in  such  case  is 
of  the  substance  of  it.^  If  the  gift  and  all  its  accumulations 
are  of  necessity  to  vest  in  some  person  absolutely,  in  such 
manner  that  he  will  have  a  right  to  call  for  the  fund,  and 
stop  the  accumulations  within  the  legal  period,  the  bequest 
will  be  good,  although  such  persons  should  allow  the  accu- 
mulations to  go  on  as  directed  ;  '^  that  is,  the  same  rule  applies 
as  in  the  case  of  perpetuities.  The  law  concerns  itself  with 
the  possibilities  of  an  illegal  accumulation,  and  not  with  the 
fact,  whether  a  person,  having  an  absolute  vested  right  to 
a  fund,  allows  it  to  go  on  accumulating  in  accordance  with 
a  void  direction.* 

§  397.  When  a  direction  to  accumulate  is  void  for  a  part  of 
the  term,  the  income  during  such  void  part  will  belong  to  the 
heir  or  next  of  kin,  or  to  the  residuary  legatee.  Mr.  Jarman 
has  pointed  out  the  destination  of  such  income  as  follows : 
(1)  Where  there  is  a  present   gift  in    possession,  and  the 

1  Haxtun  v.  Corse,  2  Barb.  Ch.  .506 ;  Craig  v.  Craig,  3  Barb.  Ch.  76 ; 
Martin  v.  Margham,  14  Sim.  230;  Williams  v.  Williams,  4  Selden,  525; 
Phelps  V.  Pond,  23  N.  Y.  69;  Kilpatrick  v.  Johnson,  15  N.  Y.  322;  Haw- 
ley  r.  James,  5  Paige,  318 ;  Philadelphia  v.  Girard,  45  Pa.  St.  1. 

2  Amory  v.  Lord,  5  Selden,  403. 

3  Phipps  V.  Kelynge,  2  Ves.  &  B.  57  n.,  62,  63;  Tregonell  v.  Sydenham, 
3  Dow,  194;  Lewis  on  Per.  640;  Conner  v.  Ogle,  4  Md.  Ch.  443;  Saunders 
i;.  Vautier,  4  Beav.  115;  Cr.  &  Phil.  240;  Oddie  v.  Brown,  4  De  G.  &  J. 
179;  Bateman  v.  Hotchkin,  10  Beav.  426;  Bacon  v.  Proctor,  T.  &  R  31; 
Briggs  V.  Oxford,  1  De  G.,  M.  &  G.  363;  Williams  v.  Lewis,  6  H  L.  Ca. 
1013. 

*  Ante,  §  381. 
606 


CHAP.  XIII.]  ACCUMULATIONS.  [§  397. 

direction  for  accumulation  is  merely  to  govern  the  mode  of 
enjoyment,  the  result  is  to  give  those  entitled  the  present 
income,  the   same  as  if  the  direction  had  not  been  given.^ 

(2)  Where  the  trust  for  accumulation  is  grafted  upon  an 
estate  where  vesting  is  deferred  or  made  contingent  until 
after  the  period  of  accumulation,  the  statute  by  stopping  the 
accumulation  does  not  hasten  the  vesting  or  the  possession, 
and  the  income  goes  to  the  residuary  legatee  or  the  heir, 
according  as  it  is  personal  or  real  estate,  until  the  vesting  or 
possession  of  the  estate  is  matured.  But  where  the  residue 
is  not  given  absolutely,  but  only  for  life  or  years,  the  interest 
upon  a  legacy  thus  directed  to  be  accumulated  beyond  the 
legal  period  goes  into  the  residue  of  the  estate  as  capital.^ 

(3)  Where  a  residue  is  directed  to  be  accumulated,  the  in- 
come, when  its  accumulation  becomes  illegal,  will  go  to  the 
heir  or  next  of  kin,  according  as  the  property  may  be  real 
or  personal  estate.^  (4)  The  income  of  the  accumulations 
follows  the  same  rule  as  the  accumulation.*  These  are  sub- 
stantially the  same  rules  that  apply  to  the  distribution  of 
income  which  is  illegally  directed  to  be  accumulated  at 
common  law. 

1  Trickey  v.  Trickey,  3  Myl.  &  K.  560;  Clulow's  Trust,  5  Jur.  (n.  s.) 
1002;  28  L.  J.  Ch.  696;  Combe  v.  Hughes,  11  Jur.  (n.  s.)  194;  1  Jarm. 
on  Wills,  292;  Hawley  v.  James,  5  Paige,  318. 

2  Jones  V.  Maggs,  9  Hare,  605;  Macdonald  v.  Brice,  2  Keen,  276; 
Eyre  v.  Marsden,  Id.  574;  Ellis  v.  Maxwell,  3  Beav,  587;  Nettleton  v. 
Stephenson,  3  De  G.  &  Sm.  366;  Harrington  v.  Liddell,  10  Hare,  429; 
Att'y-Gen.  v.  Poulden,  3  Hare,  555;  Crawley  v.  Crawley,  7  Sim.  427; 
Morgau  v.  Morgan,  4  De  G.  &  Sm.  175;  Hull  v.  Hull,  24  N.  Y.  647;  1 
Jarm.  on  Wills,  292. 

3  Skrymsher  w.  Northcote,  1  Swanst.  566;  Macdonald  *'.  Brice,  2  Keen, 
276;  Pride  v.  Fooks,  2  Beav.  437;  Elborne  v.  Goode,  14  Sim.  165;  Wilson 
V.  Wilson,  1  Sim.  (n.  s.)  288;  Bourne  v.  Buckton,  2  Sim.  (x.  s.)  91;  Oddie 
V.  Brown,  4  De  G.  &  J.  179;  Halford  v.  Stains,  16  Sim.  488;  Wilde  v. 
Davis,  1  Sm.  &  G.  475;  Eyre  v.  Marsden,  2  Keen,  564;  4  Myl.  &  Cr.  431; 
Edwards  v.  Tuck,  3  De  G.,  M.  &  G.  40;  Burt  v.  Sturt,  10  Hare,  415;  1 
Jarm.  on  Wills,  292. 

*  Crawley  v.  Crawley,  7  Sim.  427;  O'Neill  v.  Lucas,  2  Keen,  316; 
Morgan  v.  Morgan,  4  De  G.  &  Sm.  175;  20  L.  J.  Ch.  441 ;  1  Jarm.  on 
Wills,  292. 

507 


§  399.]  PERPETUITIES   AND    ACCUMULATIONS.       [CHAP.  XIII. 

§  398.  In  New  York,^  Michigan,^  Wisconsin,^  and  Minne- 
sota,* the  common-law  rules  in  relation  to  accumulations  are 
changed  by  statutes,  which  are  substantially  the  same  in  each 
State.  In  those  States  accumulations  may  be  directed  by 
deed  or  will,  during  the  minority  of  one  or  more  persons,  to 
commence  with  the  creation  of  the  estate  out  of  which  the 
accumulation  is  to  be  made,  and  to  end  with  the  minority  of 
the  persons  named.  If  there  is  a  direction  for  an  accumula- 
tion for  a  longer  period,  the  excess  only  is  void.  In  Alabama,^ 
accumulations  can  go  on  only  for  ten  years,  unless  they  are 
for  the  benefit  of  a  minor  child  in  being  at  the  creation  of  the 
trust,  or  at  the  death  of  the  testator,  in  which  case  they  may 
continue  during  its  minority.  In  Pennsylvania,^  ti'usts  for 
accumulation  cannot  be  created  for  a  longer  term  than  the 
life  or  lives  of  the  grantor  or  testator,  and  the  term  of  twenty- 
one  years  from  the  death  of  such  grantor  or  testator,  and  if 
these  limits  are  exceeded,  the  excess  is  void.  In  the  other 
States,  the  common-law  rules,  as  before  stated,  are  supposed 
to  prevail.  The  rule  in  regard  to  accumulation  is  analogous 
to  the  rules  in  regard  to  the  vesting  of  executory  estates.  At 
common  law,  the  same  _^rule  prevails  in  both  cases.  In  many 
of  the  States,  the  rules  regulating  the  vesting  of  such  estates 
have  been  altered  by  statutes.  Whether  the  modification  of 
those  rules  by  statute,  without  reference  to  the  rule  as  to 
accumulations,  would  also  alter  the  rule  as  to  accumulations 
in  those  States  does  not  seem  to  have  been  considered. 

§  399.  Where  there  are  no  statutes  regulating  accumula- 
tions, a  direction  to  accumulate  a  fund  for  a  charity,  for  a 

1  Rev.  Stat.  (4th  ed.)  p.  135;  Craig  v.  Craig,  3  Barb.  Ch.  76;  Killam 
V.  Allen,  52  Barb.  605  ;  Hawley  v.  James,  5  Paige,  480;  Hull  v.  Hull,  24 
N.  Y.  647;  Robinson  v.  Robinson,  5  Lansing,  167;  Williams  v  Williams, 
8  N.  Y.  35^;  Kilpatrick  v.  Johnson,  15  N.  Y.  322;  Haxtun  v.  Corse,  2 
Barb.  Ch.  508;  Lang  v.  Ropke,  5  Sandf.  S.  C.  363;  Meserole  v.  Meserole, 
1  Hun,  66;  Pray  v.  Hedgeman,  27  Hun,  603. 

2  Comp.  Laws,  1857,  c.  85,  §§  1.5-26. 

3  Rev.  Stat.  18.58,  c.  83,  §§  15-26. 

*  Comp.  Stat.  18."39,  c.  31,  §§  15-26. 

6  Code,  1852,  §  1310.  «  Purd.  Dig.  1861,  p.  853,  §  9. 

508 


CHAP.  XIII.]  ACCUMULATIONS.  [§  400- 

term  beyond  the  common-law  limit,  does  not  vitiate  the  gift 
for  the  charity ,1  although  no  limit  has  been  determined  by 
courts  during  which  an  accumulation  for  a  charity  may  be 
permitted.  It  is  probable  that  courts  would  take  care 
that  no  extraordinary  or  extravagant  term  for  accumulation 
should  be  allowed  for  a  future  and  prospective  good.  But 
where  there  are  statutes  against  accumulations,  charities  will 
be  governed  by  the  same  rules  unless  they  are  specially 
excepted.^ 

§  400.  In  Bassil  v.  Lister,^  it  was  determined  that  a  direc- 
tion of  a  testator  that  premiums  on  policies  of  insurance 
should  be  paid  out  of  his  estate,  upon  the  lives  of  his  sons 
during  their  lives,  was  not  a  direction  for  an  accumulation 
within  the  prohibition  of  the  statute.  The  case  is  severely 
criticised  in  Jarman  on  Wills ;  *  but  it  would  seem,  that  it 
would  not  be  illegal  for  a  testator  to  direct  the  premiums  to 
be  paid  upon  a  life  policy,  if  the  primary  object  of  such  a 
direction  is  not  accumulation,  but  security  or  safety.  The 
question  cannot  arise,  however,  in  the  absence  of  statutory 
provisions  upon  the  subject  of  accumulations ;  for  it  can  be 
an  accumulation  for  one  life  only  in  being  at  the  time,  and 
such  an  accumulation  is  legal  by  the  rules  of  the  common 
law. 

1  Odell  V.  Odell,  10  Allen,  1;  but  see  Hillyard  v.  Miller,  10  Pa.  St.  326; 
Philadelphia  v.  Girard,  45  Pa.  St.  1. 

2  Martin  v.  Margham,  14  Sim.  230. 

8  Bassil  V.  Lister,  9  Hare,  177.  *  1  Jarm.  294-297. 

509 


GENERAL   DUTIES   OF   TRUSTEES.  [CHAP.  XIV. 


CHAPTER   XI 7. 

GENERAL   PROPERTIES   AND   DUTIES   OF  THE   OFFICE   OF   TRUSTEE. 

§  401.   A  trustee,  having  accepted  the  oflSce,  is  bound  to  discharge  its  duties. 

§  402.    He  cannot  delegate  his  authorit}'  except  to  agents  in  proper  cases. 

§  403.  Not  responsible  if  he  follow  directions  in  employing  agents. 

§  404.  Where  agents  must  be  employed. 

§  405.  When  responsible  for  agents  and  attorneys. 

§  406.  When  not  responsible. 

§  407.  Difference  of  liability  in  law  and  equitj'. 

§  408.  Trustees  responsible  for  all  mischiefs  arising  from  delegating  discretion- 

ary powers. 

§  409.  Employing  agents  or  attorneys  may  not  be  a  delegation  of  authoritj'  or 

discretion. 

§  410.   A  sale  or  devise  of  the  trust  estate  not  a  delegation  of  the  trust. 

§  411.   Several  trustees  constitute  but  one  collective  trustee. 
§§  412, 41.3.     When  they  must  all  act  and  when  not. 

§  414.   As  to  the  survivorship  of  the  office  of  trustee. 

§  415.   General  rule  as  to  liability  for  cotrustees. 

§  416.  May  make  themselves  liable,  where  otherwise  thej'  would  not  be. 

§  417.  Trustees  must  use  due  diligence  in  all  cases,  or  they  will  be  liable  for 

cotrustees. 

§  418.  Cases  of  a  want  of  due  care  and  prudence. 

§  419.  lu  case  of  collusion  or  gross  negligence,  a  trustee  will  be  liable  for  acts 

of  cotrustees. 

§  420.  When  cotrustees  are  liable  for  others  upon  sales  of  real  estate  under  a 

power. 

§  420  a.         Indemnifying  of  one  trustee  by  another. 

§  421.  As  to  liability  of  coexecutors  for  the  acts  of  each  other. 

§  422.  An  executor  must  not  enable  his  coexecutor  to  misapply  the  funds. 

§  423.  When  executors  must  all  join  they  are  not  liable  for  each  other's 

acts;  but  they  must  use  due  diligence. 

§  424.  An  executor  must  not  allow  money  to  remain  under  the  sole  control 

of  his  coexecutor. 

§  425.  Executors  and  administrators  governed  by  the  same  rules. 

§  426.  Rule  where  coexecutors  or  cotrustees  give  joint  bonds  for  security  of  the 

administration  of  the  estate. 

§  427.   Trustees  can  make  no  profit  out  of  the  office. 

§  428.  Cannot  buy  up  debts  against  the  estate  or  cestui  que  trust  at  a  profit. 

§  429.  Cannot  make  a  profit  from  the  use  of  trust  funds  in  business,  trade,  or 

speculation. 

§  4.30.  All  persons  holding  a  fiduciary  relation,  subject  to  the  same  rule. 

§  431.  All  persons  holding  fiduciary  relations  to  an  estate,  subject  to  the 

same  rule. 

610 


CHAP.  XIV.]       TRUSTEE    CANNOT   RENOUNCE    HIS    TRUST,  [§  401. 

§  432.  Can  receive  no  profit  for  serving  in  their  professional  characters  a  trust 

estate. 
§  433.  Trustees  can  set  up  no  claim  to  the  trust  estate,  and  ought  not  to  betray 

the  title  of  the  cestui  que  trust. 
§  434.   In  England,  upon  failure  of  heirs  to  the  cestui  que  trust,  trustee  ma}'  hold 

real  estate  to  his  own  use. 
§  435.    Speculative  questions. 

§  436.   In  the  United  States,  the  interest  of  the  cestui  que  trust  in  real  estate  escheats. 
§  437.   So  it  does  in  England  and  the  United  States  in  personaltj'. 
§  437  a.  Contracts  of  trustee. 
§  437  b.  Signature  of  trustee. 

§  401.  A  TRUSTEE,  having  accepted  a  trust,  cannot  re- 
nounce it.  If  any  one  undertakes  an  office  for  another,  he  is 
bound  to  discharge  its  duties,  and  he  cannot  free  himself  from 
liability  by  mere  renunciation.  He  must  be  discharged  by  a 
court  of  equity,  or  by  a  special  power  in  the  instrument  of 
trust,  or  by  the  consent  of  all  parties  interested  in  the  estate, 
if  they  are  sui  juris :  if  all  the  parties  are  not  sui  juris,  re- 
course must  be  had  to  a  court  of  equity,  in  the  absence  of 
any  provisions  in  the  instrument  of  trust.^  Nor  can  a  party 
qualify  his  own  acts.  Where  he  is  named  trustee  or  executor, 
and  acts  in  behalf  of  certain  parties  in  the  management  of.  the 
estate,  he  cannot  protest  that  he  is  not  acting  generally,  and 
that  he  will  not  be  responsible  for  any  mismanagement.  On 
the  contrary,  if  he  so  acts,  and  his  coexecutors  accept  the 
trust,  and  commit  a  devastavit,  he  will  be  equally  responsible.^ 
Even  if  a  trustee  gives  a  bond  for  the  due  execution  of  the 
trust,  and  in  a  suit  upon  the  bond  is  obliged  to  pay  the  full 
amount,  he  is  not  discharged  from  the  trust,  nor  does  the 
trust  property  vest  in  him  beneficially.  He  is  still  a  trustee, 
and  must  account  for  the  trust  property,  and  all  the  income 
and  profits.     Courts  of  equity,  however,  in  such  cases  have 

1  Post,  §§  920-922;  Doyle  v.  Blake,  2  Sch.  &  Lef.  245;  Chalmer  v. 
Bradly,  1  J.  &  W.  68;  Read  v.  Truelove,  Amb.  417;  Mansoii  v.  Baillie, 
2  Macq.  II.  L.  Ca.  80;  Switzer  v.  Skiles,  3  Gilm.  (111.)  529;  Diefendorf 
V.  Spraker,  6  Seld.  21G;  Shepherd  v.  McEvers,  4  Johns.  Ch.  130;  Matter 
of  Jones,  4  Sandf.  015;  Cruger  v.  Ilalliday,  11  Paige,  314;  Courtenay  v. 
Courtenay,  3  Jo.  &  Lat.  ."329. 

2  Lowry  v.  Fulton,  9  Sim.  123;  Doyle  v.  Blake,  2  Sch.  &  Lef.  231; 
Read  v.  Truelove,  Amb.  417 ;  Urch  v.  Walker,  3  Myl.  &  Cr.  702 ;  Van  Horn 
V.  Fonda,  5  Johns.  Ch.  403. 

511 


§  402.]  GENERAL   DUTIES   OF   TRUSTEES.  [CHAP.  XIV. 

power  to  do  equity ;  and  the  trustee  would  not  be  ordered  to 
convey  the  trust  property  without  repayment  to  him  of  the 
money  paid  out  on  his  bond.^  Until  the  trustee  has  been 
discharged,  the  cestui  que  trust  may  require  the  due  execution 
of  the  trust ;  and  where  the  trustee  will  not  take  proper  steps 
to  enforce  a  claim  against  a  debtor,  he  may  file  a  bill  against 
the  trustee  for  the  execution  of  the  trust  and  to  obtain  the 
proper  order  for  using  the  trustee's  name  or  for  obtaining  a 
receiver  to  use  the  trustee's  name.^  Trustees  will  be  held  to 
great  strictness  in  their  dealings  with  the  estate,  but  courts 
will  treat  them  leniently  when  they  act  in  good  faith. ^  A 
trustee  is  bound  to  exercise  ordinary  care  and  judgment,  and 
it  is  no  excuse  for  him  that  he  did  not  possess  them ;  by  ac- 
cepting a  trust,  whether  gratuitous  or  not,  he  undertakes  that 
he  does  possess  and  will  exercise  them.* 

§  402.  The  office  of  trustee  is  one  of  personal  confidence, 
and  cannot  be  delegated.  If  a  person  takes  upon  himself  the 
management  of  property  for  the  benefit  of  another,  he  has  no 
right  to  impose  that  duty  on  others,  and  if  he  does  he  will 
be  responsible  to  the  cestui  que  trust,  to  whom  he  owes  the 
duty.^  Therefore,  if  a  trustee  confides  his  duties  or  the  trust 
fund  to  the  care  of  a  stranger,^  or  to  his  attorney,'  or  even  to 

1  Moorcroft  v.  Dowding,  2  P.  Wms.  314.  See  Barker  v.  Barker,  14 
Wis.  131  ;  Saunders  v.  Webber,  39  Cal.  287. 

2  Sharpe  v.  San  P.  Railway  Co.,  L.  Pt.  8  Ch.  597. 
8  Crabb  v.  Young,  92  N.  Y.  56. 

4  Hun  V.  Gary,  82  N.  Y.  65. 

6  Turner  v.  Corney,  5  Beav.  517;  Taylor  v.  Hopkins,  41  HI.  442. 

«  Adams  v.  Clifton,  1  Russ.  297;  Kilbee  v.  Sneyd,  2  Moll.  199;  Hard- 
wick  V.  Mynd,  1  Anst.  109;  Venables  v.  Foyle,  1  Ch.  Ca.  2;  Douglass 
V.  Browne,  Mont.  93;  Ex  parte  Booth,  Id.  248;  Walker  v.  Symonds,  3 
Swanst.  79,  n.  (a) ;  Char.  Corp.  v.  Sutton,  2  Atk.  40.5  ;  Wilkinson  v.  Parry, 
4  Russ.  272;  Hulme  v.  Hulme,  2  Myl.  &  K.  682;  Black  v.  Irwin,  Harp.  L. 
411;  Berger  V.  Duff,  4  Johns.  Ch.  368;  Pearson  v.  Jamison,  1  McLean, 
199;  Newton  v.  Bronson,  3  Kern.  587;  Andrews.  N.  Y.  Bible  Soc,  4 
Sandf.  156;  Niles  v.  Stevens,  4  Denio,  309;  Beekman  v.  Bonsor,  23  N.  Y. 
298 ;  Whittlesey  v.  Hughes,  39  Mo.  13 ;  Graham  v.  King,  50  ]Mo.  22 ;  Howard 
V.  Thornton,  Id.  291;  Bales  v.  Perry,  51  Mo.  449. 

T  Chambers  v.  Minchin,  7  Ves.  196;  Griffiths  v.  Porter,  25  Beav.  236; 

512 


CHAP.  XIV.]  DELEGATION   OF    AUTHORITY.  [§  403. 

his  cotrustee  or  coexecutor/  he  will  be  personally  responsible. 
But,  before  this  responsibility  can  arise,  the  trustee  must  have 
accepted  the  office.  Where  a  person  named  executor  received 
a  bill  by  post,  and  passed  it  over  to  a  coexecutor  who  had 
accepted  the  trust,  it  was  held  that  the  act  might  be  consid- 
ered as  the  act  of  a  stranger,  and  did  not  impose  any  respon- 
sibility .^  So  where  a  coexecutor  collected  money,  and  paid 
it  to  a  banker,  who  was  also  his  coexecutor,  and  whom  the 
testator  employed  as  his  banker,  he  was  held  excused  for 
trusting  the  same  person  as  his  coexecutor  whom  the  testator 
trusted  as  his  banker.^ 

§  403.  So  trustees  are  not  responsible,  if  they  follow  the 
directions  of  the  settlor.  Thus,  where  a  testator  recommended 
his  executors  to  employ  a  person  who  had  been  his  own  agent 
and  clerk,  and  they  employed  him  to  collect  moneys,  and  he 
became  insolvent,  it  was  held  that,  as  the  testator  pointed 
out  the  agent  to  whom  certain  business  might  be  delegated, 
the  executors  were  not  liable  for  the  loss,  if  they  used  due 
diligence  to  recover  the  money.*  So  if  an  executor  pays 
over  money  which  he  has  no  right  to  retain.  Thus  a  testator 
appointed  A.,  B.,  and  C.  his  executors,  and  authorized  A.  to 
sell  real  estate  for  certain  purposes.  A.  employed  B.  as  his 
agent  to  sell  the  real  estate ;  B.  sold  the  estate  and  paid  the 
money  over  to  A.,  who  misapplied  it;  and  it  was  held  that 
B.  received  the  money,  not  as  executor,  but  as  agent  of  A., 

Itigle  V.  Partridge,  32  Beav.  661;  34  Beav.  411;  Bostock  v.  Floyer,  L.  R. 

1  Ch.  26;  Ex  parte  Townsend,  1  Moll.  139;  Ghost  v.  Waller,  9  Beav.  497; 
Turner  v.  Corney,  5  Beav.  115;  Sinclair  v.  Jackson,  8  Cow.  582. 

1  Langford  v.  Gascoyne,  11  Ves.  333;  Clough  v.  Bond,  3  Myl.  &  Cr.  497  : 
Eaves  v.  Hickson,  30  Beav.  136;  Davis  v.  Spurling,  1  R.  &  M.  66;  Anon 
Mos.  35,  36;  Harrison  v.  Graham,  1  P.  Wras.  241,  n.  (y) ;  Kilbee  v.  Sneyd, 

2  Moll.  200;  Marriott  v.  Kinnersley,  Tam.  470;  Thompson  v.  Finch,  22 
Beav.  316;  8  De  G.,  M.  &  G.  560;  Dines  v.  Scott,  T.  &  R.  361;  Cowell 
V.  Gatcombe,  27  Beav.  568;  Trutch  v.  Lamprell,  20  Beav.  116;  Ex  parte 
Winnall,  3  D.  &  C.  22;  Berger  v.  Duff,  4  Johns.  Ch.  368. 

2  Balchen  v.  Scott,  2  Ves.  Jr.  678. 

3  Churchill  v.  Hobson,  1  P.  Wms.  241  ;  Chambers  v.  Minchin,  7  Ves. 
198.     And  see  1  P.  Wms.  241,  n  (y). 

*  Kilbee  v.  Sneyd,  2  Moll.  199;   Doyle  v.  Blake,  2  Sch.  &  Lef.  239. 
VOL.  I.  — 33  513 


§  404.]  GENERAL   DUTIES   OF   TRUSTEES.  [CHAP.  XIV. 

and  as  A.  had  authority  to  sell,  he  had  a  right  to  the  money, 
and  that  B.  could  not  retain  it,  and  was  not  responsible 
for  it.i 

§  404.  But  there  are  circumstances  where  the  trustees 
must  employ  agents.  Lord  Hardwicke  said :  "  There  are  two 
sorts  of  necessity,  legal  necessity  and  moral  necessity.  As  to 
the  first  a  distinction  prevails.  Where  two  executors  join  in 
giving  a  discharge  for  money,  and  only  one  of  them  receives 
it,  they  are  both  answerable  for  it ;  because  there  is  no  neces- 
sity for  both  to  join  in  the  discharge,  the  receipt  of  either 
being  sufficient ;  but  if  trustees  join  in  giving  a  discharge 
and  one  receives,  the  other  is  not  answerable,  because  his 
joining  in  the  discharge  was  necessary.  Moral  necessity  is 
from  the  usage  of  mankind,  if  the  trustee  acts  prudently  for 
the  trust,  as  he  would  have  done  for  himself,  '  and  according 
to  the  usage  of  business ; '  as  if  a  trustee  appoint  rents  to  be 
paid  to  a  banker  at  that  time  in  credit,  but  Avho  afterwards 
breaks,  the  trustee  is  not  answerable.  So  in  the  employment 
of  stewards  and  agents ;  for  none  of  these  cases  are  on  ac- 
count of  necessity,  but  because  the  persons  acted  in  the  usual 
method  of  business."  ^  Other  cases  have  held  that  "  necessity 
includes  the  usual  course  of  business,"  ^  as  in  employing  a 
broker  in  making  investments  of  a  class  usually  so  made.* 
But  the  agent  must  not  be  employed  out  of  the  scope  of  his 
regular  business.^  Where  an  executor  in  London  remitted 
money  to  an  executor  in  the  country  to  pay  debts  there  due, 
it  was  held  to  be  a  necessary  transaction  in  the  course  of 

1  Davis  V.  Spurling,  1  R.&  M.  6i;  Tarn.  199;  Keane  v.  Roberts,  4  Madd. 
332,  356;  Crisp  v.  Spranger,  Nels.  109. 

2  Ex  parte  Belchier,  Amb.  219. 

3  Bacon  v.  Bacon,  5  Ves.  335;  Clough  v.  Bond,  3  Myl.  &  Cr.  497 ;  Joy  v. 
Campbell,  1  Sch.  &  Lef.  341;  Chambers  v.  ]\linchin.  7  Ves.  193;  Langford 
V.  Gascoyne,  11  Ves.  335;  Davis  v.  Spurling,  1  R.  &  M.  66;  Munch  i;. 
Cockerell,  5  Myl.  &  Cr.  214 ;  Hawley  v.  James,  5  Paige,  487 ;  May  v.  Frazer, 
4  Litt.  391 ;  Telford  r.  Barry,  1  Iowa,  591;  Blight  v.  Schenck,  10  Barr,  285; 
Lewis  V.  Reed,  11  Ind.  239;  Mason  v.  Wait,  4  Scam.  132. 

*  Speight  V.  Gaunt,  22  Ch.  D.  727. 
5  Fry  V.  Tapson,  28  Ch.  D.  268. 

'514 


CHAP.  XIV.]  DELEGATION   OP   AUTHORITY.  [§  405. 

business,  and  the  executor  in  London  was  not  responsible  for 
the  loss  of  the  money  by  his  coexecutor  in  the  country.^  So, 
where  A.  and  B.  were  assignees  of  a  bankrupt,  and  A.  signed 
dividend  checks  and  delivered  them  to  B.  for  his  signature, 
and  for  delivery  to  the  creditors,  and  they  were  stolen  from 

B.  and  negotiated  at  the  bank,  it  was  held  that  A.  was  not 
responsible  for  the  loss,  as  he  had  delegated  the  checks  to  B. 
in  the  necessary  course  of  the  business.^  So  a  trustee  is  not 
called  upon,  in  the  ordinary  course  of  business,  to  take 
security  from  the  agent  or  other  person  whom  he  employs.^ 
One  trustee  may  employ  his  cotrustee  as  his  agent,  or  one 
trustee  may  act  for  the  whole,  within  the  scope  of  those  duties 
where  an  agent  may  be  employed.* 

§  405,  It  was  held  in  one  case,  that  assignees  were  respon- 
sible for  the  loss  of  money  by  an  attorney  employed  by  them 
to  collect  debts  due  the  estate,  on  the  ground  that  there  was 
no  necessity  for  them  to  allow  the  attorney  to  receive  a  shil- 
ling of  the  money  except  the  costs,  as  he  could  not  give  a 
valid  receipt  for  the  same ;  ^  and  Lord  Eldon  was  cited  as  an 
authority  for  this.  Mr.  Lewin  questions  this  case,  and  says 
that  trustees  must  not  allow  money  to  remain  in  the  hands  of 
an  attorney,  but  that  the  authorities  are  doubtful  which  say 
that  money  may  not  pass  through  the  hands  of  an  attorney  in 
the  ordinary  course  of  business.  The  case  is  authority,  how- 
ever, thus  far,  that  attorneys  cannot  sign  receipts  for  trustees, 

1  Joy  V.  Campbell,  1  Sch.  &  Lef.  341 ;  Barrings  v.  Willing,  4  Wash.  C. 

C.  251 ;  Jones's  App.,  8  Watts  &  S.  147;  State  v.  Guilford,  15  Ohio,  593; 
Deaderick  v.  Cantrell,  10  Yerg.  254;  Thomas  v.  Scruggs,  Id.  401;  Mac- 
cubbin  v.  Cromwell,  7  G.  &  J.  1.57. 

2  Ex  parte  Griffin,  2  G.  &  J.  114;  Wackerbath  v.  Powell,  Buck,  495; 
2  G.  &  J.  151. 

8  Ex  parte  Belchier,  Amb.  220. 

*  Ex  parte  Rigby,  19  Ves.  463  ;  Abbott  v.  American  Hard  Rubber  Co., 
33  Barb.  579  ;  Sinclair  v.  Jackson,  8  Cow.  543;  Webb  v.  Ledsom,  1  K.  & 
J.  385;  Leggett  v.  Hunter,  19  N.  Y.  445 ;  Bowers  v.  Seeger,  3  Watts  &  S. 
222. 

5  Ex  parte  Townsend,  1  Moll.  149 ;  Anon.  12  Mod.  5G0 ;  Re  Fryer,  3 
K.  &  J.  317. 

515 


§  408.]  GENERAL   DUTIES   OF   TRUSTEES.  [CHAP.  XIV. 

and  if  they  authorize  them  so  to  do,  the  trustees  will  be  re- 
sponsible as  for  the  acts  of  an  agent  improperly  appointed.^ 

§  406.  If  money  is  to  be  transmitted  to  a  distant  place,  a 
trustee  may  do  so  through  the  medium  of  a  responsible  bank, 
or  he  may  take  bills  from  persons  of  undoubted  credit,  pay- 
able at  the  place  where  the  money  is  to  be  sent ;  but  the  bills 
must  be  taken  to  him  as  trustee :  if  he  neglects  these  precau- 
tions he  will  be  responsible  for  any  loss.^ 

§  407.  It  is  said  that  there  is  a  difference  in  the  rule,  as 
applied  to  executors  in  a  court  of  law  and  a  court  of  equity. 
Thus,  in  a  court  of  law,  an  executor  will  be  charged  with  all 
the  assets  that  come  to  his  hands  to  be  administered,  and  he 
must  discharge  himself  by  showing  a  legal  administration  of 
all  of  them ;  and  he  cannot  discharge  himself  at  law  by  show- 
ing that  he  intrusted  them  to  another  in  the  ordinary  course 
of  business ;  that  he  used  due  caution  and  prudence,  and 
reposed  a  reasonable  confidence  in  such  other  person ;  and 
that  the  assets  were  lost  without  negligence  or  default  on  his 
part.  Such  a  state  of  facts  would  not  sustain  a  plea  of  plene 
administravit  in  a  court  of  law.  But  a  court  of  equity  would 
adjust  the  account  of  the  executor  upon  equitable  principles.^ 
A  court  of  probate,  in  taking  the  account,  would  also  act  upon 
equitable  principles.* 

§  408.  If  a  trust  is  of  a  discretionary  nature,  the  trustee 
will  be  responsible  for  all  the  mischievous  consequences  of  the 
delegation,  and  the  exercise  of  the  discretion  will  be  absolutely 
void  in  the  substitute.^     Nor  can  a  discretionary  trust  be  dele- 

1  Lewin  on  Trusts,  208. 

2  Wrenr.  Kirton,  11  Ves.  380;  Ex  parte  Belchier,  219;  Routhr.  Howell, 
3  Ves.  566 ;  Massey  v.  Banner,  IJ.  &  W.  247 ;  Knight  v.  Plymouth,  1  Dick. 
120 ;  3  Atk.  480. 

3  Cross  V.  Smith,  7  East,  246;  Jones  v.  Lewis,  2  Ves.  241;  Poole  v. 
Munday,  103  Mass.  174;  Upson  v.  Badeau,  8  Bradf.  Sur.  13. 

^  Ibid. 

5  Alexander  v.  Alexander,  2  Ves.  643;  Att'y-Gen.  v.  Scott,  1  Ves.  413 ; 
Wilson  V.  Dennison,  Amb.  82;  7  Bro.  P.  C.  296;  Bradford  v.  Belfield,  2 
516 


CHAP.  XIV.]  CANNOT   DELEGATE   THE   TRUST.  [§  410. 

gated  to  a  cotrustee.^  Where  a  sum  of  money  was  given  to 
three  trustees  to  be  distributed  in  charity  in  their  discretion, 
and  they  divided  it  into  three  parts,  and  each  took  control  of 
a  third,  Lord  Hardwicke  said :  "  I  am  of  opinion  that  the 
trustees  could  not  divide  the  charity  into  three  parts,  and  each 
trustee  nominate  a  third  absolutely,  because  the  determination 
of  the  propriety  of  every  object  was  left  by  the  testator  to  the 
discretion  of  all  the  executors."  ^ 

§  409.  But  it  must  be  observed  that  the  appointment  of  an 
attorney,  proxy,  or  agent  is  not  necessarily  a  delegation  of 
the  trust.  The  trustee  must  act  at  times  through  attorneys 
or  agents,  and  if  he  determines  in  his  own  mind  how  to  exer- 
cise the  discretion,  and  appoints  agents  or  instruments  to 
carry  out  his  determination,  he  cannot  be  said  to  delegate 
the  trust,  even  though  deeds  or  other  instruments  are  signed 
by  attorneys  in  his  name.  So,  if  he  gives  instructions  to  his 
attorneys  and  agents  how  to  act,  it  cannot  be  said  to  be  a 
delegation  of  the  trust.^ 

§  410.  It  has  been  before  stated  that  a  sale  or  devise  of 
the  trust  estate  by  the  trustee  will  not  be  a  delegation  or 
communication  of  a  discretionary  trust  to  the  vendee  or  de- 
visee, unless  tiie  original  instrument  of  trust  contemplated 
and  authorized  such  an  act  by  vesting  the  trust  or  power 
annexed  to  the  estate  in  the  trustee  and  his  assigns  or 
devisees.* 

Sim.  264 ;  Hitch  v.  Leworthy,  2  Hare,  200 ;  Doe  v.  Robinson,  24  Miss. 
688;  Singleton  v.  Scott,  11  Iowa,  589;  Pearson  v.  Jamison,  3  McLean,  69, 
197. 

^  Crewe  i>.  Dicken,  4  Ves.  97. 

2  Atfy-Gen.  v.  Gleg,  1  Atk.  356 ;  ante,  §  287. 

3  Att'y-Gen.  v.  Scott,  1  Ves.  413  ;  Ex  parte  Rigby,  19  Ves.  463;  Ord 
V.  Noel,  5  Madd.  498;  Sinclair  v.  Jackson,  8  Cow.  582;  Hawley  v.  James,  5 
Paige,  487;  Newton  v.  Bronson,  3  Kern.  587;  Blight  v.  Schenck,  10  Barr, 
285;  Ex  parte  Belchier,  Amb.  219;  Bacon  v.  Bacon,  5  Ves.  335;  Clough 
V.  Bond,  3  Myl.  &  Cr.  497;  Lewis  v.  Reed,  11  Ind.  239;  Mason  v.  Wait,  4 
Scam.  132 ;  Powell  v.  Tuttle,  3  Comst.  396;  Bales  v.  Perry,  51  Mo.  449. 

4  Ante,  §  340;  Saunders  v.  Webber,  39  Cal.  287. 

617 


§  412.]  GENERAL    DUTIES    OF    TRUSTEES,  [CHAP.  XIV. 

§  411.  Where  a  settlor  vests  his  property  in  several  co- 
trustees, they  all  form,  as  it  were,  one  collective  trustee ; 
therefore  they  must  perform  their  duties  in  their  joint  ca- 
pacity,^ even  in  making  a  purchase.^  In  law  there  is  no  such 
person  known  as  an  acting  trustee  apart  from  his  cotrustees. 
All  who  accept  the  office  are  acting  trustees.  If  any  one 
trustee  who  has  accepted,  refuses  to  join  in  the  proposed  act, 
or  is  incapable,  the  others  cannot  proceed  without  him,  but 
an  application  must  be  made  to  the  court.^  So,  if  trustees 
bring  suits,  or  defend  suits  in  court,  they  must  act  jointly, 
and  they  should  all  employ  the  same  counsel.  If  they  sever 
in  their  defence  and  incur  extra  costs,  they  might  be  com- 
pelled to  bear  them  personally. 

§  412.  A  receipt  for  money,  in  the  absence  of  special  direc- 
tions in  the  instrument  of  trust,  must  be  signed  by  all  the 
trustees,  or  it  will  be  invalid.*  Where  the  trustees  are 
numerous,  the  court  generally  inserts  an  order  that  moneys 
may  be  paid  to  two  or  more.°     This  rule  is,  however,  relaxed 

1  Smith  V.  Wildraau,  37  Conn.  38i;  White  v.  Watkins,  23  Mo.  423; 
Ex  parte  Griffin,  5  G.  &  J.  116;  Shook  v.  Shook,  19  Barb.  653;  De  Peys- 
ter  V.  Ferrers,  11  Paige,  13;  Franklin  v.  Osgood,  14  Johns.  560;  Cox  v. 
Walker,  26  Me.  504;  Hill  v.  Josselyn,  13  Sm.  &  M.  597;  Crewe  t'.  Dicken, 
4  Ves.  97;  Fellows  v.  Mitchell,  1  P.  Wras.  83;  2  Vera.  516;  Churchill  v. 
Hobson,  Id.  241;  Chambers  v.  Minchin,7  Ves.  198;  Leigh  v.  Barry,  3 
Atk.  584;  Belchier  v.  Parsons,  Amb.  219;  Ex  parte  Rigby,  19  Ves.  463; 
Webb  V.  Ledsam,  1  K.  &  J.  38o;  Latrobe  v.  Tiernau,  2  Md.  Ch.  480; 
Vandever's  App.,  8  Watts  &  S.  405;  Sinclair  v.  Jackson,  8  Cow.  544; 
Ridgeley  v.  Johnson,  11  Barb.  527;  Austin  v.  Shaw,  10  Allen,  552;  King 
?'.  Stone,  6  Johns.  Ch.  323;  Powell  v.  Tuttle,  3  Comst.  396;  Sherwood  v. 
Read,  7  Hill,  431. 

2  Holcomb  V.  Holcomb,  3  Stockt.  281. 

3  Smith  V.  Wildman,  37  Conn.  381;  Doyley  v.  Sherratt.  2  Eq.  Ca.  Ab. 
742;  Re  Cong.  Church  v.  Smithwick,  1  W.  N.  196;  Scruggs  v.  Driver,  31 
Ala.  274;  Matter  of  Wadsworth,  2  Barb.  Ch.  381;  Matter  of  Mechanics' 
Bank,  Id.  446;  Burrill  v.  Shell,  2  Barb.  457;  Wood  v.  Wood,  5  Paige,  596; 
Davis  V.  McNeil,  1  Ired.  Eq.  344;  Matter  of  Van  Wyke,  1  Barb.  Ch.  565  ; 
Guyton  v.  Shane,  7  Dana,  498;  Ridgeley  v.  Johnson,  11  Barb.  527;  Ex 
parte  Belchier,  Amb.  219. 

4  Walker  v.  Symonds,  3  Swanst.  63 ;  Hall  v.  Franck,  11  Beav.  519. 
6  Att'y-Gen.  v.  Brickdale,  8  Beav.  223. 

518 


CHAP.  XIV.]  THE  TRUST   A   JOINT   OFFICE.  [§  412. 

in  the  United  States ;  and  it  has  been  held  that  payment  of  a 
mortgage  to  one  of  two  trustees'  is  a  valid  payment.^  So  all 
the  trustees  must  join  in  proving  a  debt  against  a  bankrupt  ;2 
but,  under  special  circumstances,  the  court  may  order  the 
proof  to  be  made  by  one  or  more,  even  when  payment  must  be 
made  to  all  the  trustees.^  A  different  rule  prevails  in  regard 
to  bank  stocks,  for  the  bank  recognizes  only  the  legal  title, 
and  at  law  one  joint-tenant  may  receive  moneys ;  so  one  trus- 
tee may  receive  dividends  upon  public  stocks,*  or  the  rents  of 
real  estate,  unless  the  tenant  has  had  notice  not  to  pay  to 
one  ;^  but  all  the  trustees  must  join  in  conveying  such  stocks 
or  in  executing  a  conveyance  of  laiid,^  or  pledging  the  trust 
property."  A  deed  of  land  executed  by  one  trustee  does  not 
convey  his  share,  as  in  the  case  of  ordinary  joint-tenants.^ 
Where  a  deed  was  executed  by  two  of  three  trustees,  the  bur- 
den was  put  upon  the  purchaser  to  prove  that  the  other  trus- 
tee was  dead.^  It  has  been  said,  however,  that  in  a  case  of 
necessity,  and  after  considerable  time,  the  concurrence  of  a 
cotrustee  may  be  presumed  in  some  transactions.^'^  A  banker 
may  require  checks  to  be  signed  by  one  only,  or  by  all  the 
trustees.  But  if  trustees  place  money  at  a  banker's  in  such 
manner  that  one  of  their  number  can  withdraw  it  in  his  sole 
name,  all  the  trustees  will  be  liable  in  case  of  a  loss  under 
such  an  arrangement.^^ 

1  Bowers  v.  Seeger,  8  AVatts  &  S.  222. 

2  Ex  parte  Smith,  1  Dea.  191;  M.  &  A.  506;  Ex  parte  Phillips,  2  Dea. 
334. 

8  Ibid. 

*  Williams  v.  Nixon,  2  Beav.  472. 

5  Williams  v.  Nixon,  2  Beav.  472;  Townley  r.  Sherborne,  Bridg.  35; 
Gouldsworth  v.  Knight,  11  M.  &  W.  337;  Husband  v.  Davis,  1  C.  B.  645. 
See  Webb  v.  Ledsam,  1  K.  &  J.  385;  Mendes  v.  Guedalla,  2  John.  &  H. 
259. 

«  Ibid. ,  Morville  v.  Fowle,  144  Mass.  109,  113. 

T  Ham  V.  Ham,  58  N.  H.  70. 

*  Sinclair  o.  Jackson,  8  Cow.  543. 

9  Ridgeley  v.  Johnson,  11  Barb.  527  ;  Learned  v.  Welton,  40  Cal,  339; 
Burngarner  v.  Coggswell,  49  Mo.  259. 

10  Vandever's  App.,  8  Watts  &  S.  405. 

11  Towuley  v.  Sherborne,  Bridg.  35. 

519 


§  413.]  GENERAL   DUTIES    OP   TRUSTEES.  [CHAP.  XIV. 

§  413.  In  the  case  of  a  public  trust,  where  there  are  several 
trustees,  the  act  of  the  majority  is  held  to  be  the  act  of  the 
whole  number ;  ^  but  the  act  of  the  majority  must  be  strictly 
within  the  sphere  of  their  power  and  duty.^  When  a  special 
power  is  given  to  trustees,  it  cannot  be  exercised  by  a  majority 
only :  all  must  join.^  If  a  settlement  declares,  that,  on  the 
death  or  resignation  of  a  trustee,  the  surviving  trustees  shall 
appoint  his  successor,  all  the  surviving  trustees  must  join  in 
the  appointment.^  Where  the  trustees  are  numerous,  as  in 
the  case  of  a  charity,  the  court  may  direct  that  a  majority 
shall  form  a  quorum.  Private  trusts,  where  the  rule  prevails 
that  all  must  join,  cannot  be  affected  by  these  principles,  or 
by  any  agreements  that  may  be  made  by  the  parties.^  But  an 
instrument  of  trust  may  contain  express  directions  that  the 
trust  shall  be  administered  according  to  the  will  of  the  major- 
ity of  the  trustees,  in  which  case  the  minority  will  be  com- 
pelled to  give  effect  to  the  determinations  of  the  majority.^ 
So  if  the  power  is  given  to  either  of  two  trustees.'''  So  trustees 
are  bound  to  concur  in  every  merely  ministerial  act  necessary 
for  the  execution  of  the  trust ;  and  if  they  refuse,  they  may  be 
compelled  by  order  of  the  court.  But  where  it  is  a  mere 
matter  of  personal  discretion,  the  court  cannot  interfere,  un- 
less a  cotrustee  refuses  to  act  from  a  corrupt  or  selfish  mo- 
tive.^ But  a  majority  of  trustees  cannot  deprive  one  of  their 
number  of  his  right  and  interest  in  the  trust  property.'* 

1  Wilkinson  v.  Malin,  2  Tyr.  544 ;  Perry  v.  Shipway,  1  Gif .  1 ;  4  De  G. 
&  J.  353;  Att'y-Gen.  v.  Shearman,  2  Beav.  104;  Att'y-Gen.  v.  Cuming,  2 
Y.  &  C.  Ch.  13.0 ;  Younger  v.  Welham,  3  Swanst.  180;  Att'y-Gen.  v.  Scott, 
1  Ves.  413;  Wilson  v.  Dennison,  Amb.  82;  Sloo  v.  Law,  3  Blatch.  66,  459. 

2  Ward  V.  Hipwell,  3  Gif.  547,  Sloo  v.  Law,  3  Blatch.  66,  459. 

3  Re  Cong.  Church  v.  Smithwick,  1  W.  N.  196. 

4  Ibid. 

5  Swale  V.  Swale,  22  Beav.  585;  State  v.  Lord,  31  L.  J.  Ch.  391. 

6  Att'y-Gen.  v.  Cuming,  2  Y.  &  C.  Ch.  139;  Taylor  v.  Dickinson,  15 
Iowa,  483. 

''  Taylor  v.  Dickinson,  15  Iowa,  486. 

8  Clarke  v.  Parker,  19  Ves.  1;  Tomlin  v.  Hatfield,  12  Sim.  167;  Goulds- 
worth  V.  Knight,  11  M.  &  W.  337;  Burrill  v.  Shell,  2  Barb.  457;  Matter 
of  Mechanics'  Bank,  Id.  446. 

^  Methodist  Episcopal  Church  v.  Stewart,  27  Barb.  553. 
520 


CHAP.  XIV.]  SURVIVORSHIP    OF   THE    TRUST.  [§  414. 

§  414.  A  bare  authority ,  committed  to  several  persons, 
ceases  upon  the  death  of  one ;  but  if  the  authority  is  coupled 
with  an  interest,  it  passes  to  the  survivors. ^  The  commit- 
tee of  a  lunatic's  estate  are  mere  protectors  without  any  in- 
terest, and  the  death  of  one  extinguishes  the  office.^  An 
executorship  survives,  for  the  joint  executors  have  an  interest 
in  the  estate.^  So  testamentary  guardianship  survives,  as 
such  guardians  have  an  authority  over  the  estate.*  So  co- 
trustees have  an  authority  coupled  with  an  interest  in  the 
legal  title  of  the  estate,  and  the  office  is  impressed  with  the 
quality  of  survivorship.^  If  land  is  given  to  two  trustees  in 
trust  to  sell,  and  one  dies,  the  other  may  sell,  as  he  holds  the 
legal  title  in  the  land,  and  the  office  of  trustee.^  Otherwise, 
the  precaution  taken  by  a  settlor  to  guard  his  estate,  by  in- 
creasing the  number  of  trustees,  would  be  futile ;  for  the 
death  of  one  of  them  might  result  in  defeating  his  whole  trust. 
Where  the  trust  was  to  raise  X2000  out  of  the  testator's 
estate,  by  sale  or  otherwise  at  the  discretion  of  the  trustees, 
who  should  invest  the  same  in  their  own  names  upon  trust, 

1  Co.  Litt.  113  a;  Eyre  v.  Shaftsbury,  2  P.  Wms.  108,  121,  124; 
Attorney- General  v.  Gleg,  1  Atk.  356;  Amb.  584;  Mansell  v.  Vaughn, 
Wilm.  49  ;  Butler  v.  Bray,  Dyer,  189  b ;  Peyton  v.  Bury,  2  P.  Wms.  628. 
See  §  286. 

2  Ex  parte  Lyne,  t.  Talb.  143. 

8  Adams  v.  Buckland,  2  Vern.  514;  Hudson  v.  Hudson,  t.  Talb.  129. 

*  Eyre  v.  Shaftsbury,  2  P.  Wms.  102.  But  if  joint  guardians  are 
appointed  by  the  court,  the  death  of  one  destroys  the  guardianship. 
Bradshaw  v.  Bradshaw,  1  Russ.  528;  Hall  v.  Jones,  2  Sim.  41. 

^  Hudson  V.  Hudson,  t.  Talb.  129;  Co.  Litt.  113  a;  Attorney-General 
V.  Gleg,  Amb.  585;  Billingsley  u.  Mathew,  Toth.  168;  Gwilliamsu.  Rowell, 
Hard.  204;  Stewart  v.  Peters,  10  Mo.  755;  Butler  v.  Bray,  Dyer,  189  b; 
Dominick  v.  Sayre,  3  Sandf.  555;  Belmont  v.  O'Brien,  2  Kern.  394;  De 
Peyster  t'.  Ferrers,  11  Paige,  13;  Moses  i'.  Murgatroyd,  1  Johns.  Ch.  119; 
Shook  V.  Shook,  19  Barb.  653;  Gregg  v.  Currier,  36  N.  H.  200;  Powell 
V.  Knox,  16  Ala.  364;  Parsons  v.  Boyd,  20  Ala.  112;  Leggett  v.  Hunter, 
19  N.  Y.  445;  Aubuchon  v.  Lory,  23  Mo.  99;  Barton  v.  Tunnell,  5  Harr. 
182;  Smith  v.  McConnell,  17  111.  135;  Hopper  v.  Adee,  3  Duer,  235; 
Britton  i'.  Lewis,  8  Rich.  Eq.  271. 

*  Warburton  V.  Sandys,  14  Sim.  622;  Watson  v.  Pearson,  2  Exch.  594; 
Attorney-General  v.  Litchfield,  5  Ves.  825;  Attorney-General  v.  Cuming, 
2  Y.  &  C.  Ch    139;  Slater  v.  Wheeler,  9  Sim.  156. 

521 


§  415.]  GENERAL    DUTIES    OF    TRUSTEES.  [CHAP.  XIV. 

one  of  the  trustees  died  and  the  other  sold ;  and  Vice-Chan- 
cellor  Wood  held  that  the  survivor  could  make  a  good  title. 
He  said :  "  I  find  a  clear  estate  in  the  vendor,  and  a  clear 
duty  to  perform.  Is  it  to  be  said  that  the  sale  is  a  breach  of 
trust,  because  the  cotrustee  is  dead  ?  If  I  were  to  lay  down 
such  a  rule,  it  would  come  to  this,  that  when  an  estate  is 
vested  in  two  or  more  trustees,  to  raise  a  sum  by  sale  or  mort- 
gage, you  must  come  into  this  court  on  the  death  of  one  of 
the  trustees."  ^  The  survivorship  of  the  trust  Avill  not  be  de- 
feated, because  the  settlement  contains  a  power  for  restoring 
the  original  number  of  trustees  by  new  appointments,^  unless 
there  is  something  in  the  instrument  that  specially  manifests 
such  an  intention.^  Where  an  act  of  Parliament  declared  that 
"  survivors  should,  and  they  were  tliereby  required "  to  ap- 
point new  trustees,  the  court  expressed  an  opinion  that  the 
clause  was  not  imperative,  but  simply  directory.* 

§  415.  The  general  rule  is,  that  one  trustee  shall  not  be 
responsible  or  liable  for  the  acts  or  defaults  of  his  cotrustee. 
This  rule  was  established  in  the  time  of  Charles  the  First, 
after  very  great  consideration  and  consultation  by  the  judges 
in  the  case  of  Townley  v.  Sherborne,^  wherein  it  was  resolved 

1  Lane  *;.  Debenham,  11  Hare,  188;  Hind  v.  Poole,  1  K.  &  J.  383. 

2  Doe  V.  Godwin,  1  D.  &  R.  259;  Attorney-General  r.  Cuming,  2  Y.  & 
C,  Ch.  139;  Jacob  v.  Lucas,  1  Beav.  436;  Warburton  v.  Sandys,  14  Sim. 
622;  Hall  v.  Dewes,  Jac.  193;  Attorney-General  v.  Floyer,  2  Vern.  748; 
Townsend  v.  Wilson,  1  B.  &  A.  608. 

3  Foley  V.  Wontner,  2  J.  &  W.  245;  Jacob  v.  Lucas,  1  Beav.  436. 

4  Doe  V.  Godwin,  I  D.  &  R.  259.  And  see  Attorney-General  v.  Locke, 
3  Atk.  166;  Stamper  v.  Millar,  Id.  212;  Rex  v.  Flockwood,  2  Chit. 
252. 

6  Townley  ?;.  Sherborne,  Bridg.  35;  3  Lead.  Ca.  Eq.  718,  and  notes; 
Bowers  v.  Seeger,  8  Watts  &  S.  222;  Sinclair  v.  Jackson,  8  Cow.  543; 
Vandever's  App.,  8  Watts  &  S.  405.  And  see  Leigh  v.  Barry,  3  Atk. 
.584;  Anon.  12  Mod.  560;  Taylor  v.  Benham,  5  How  233;  Ochiltree  v. 
Wright,  1  Dev.  &  B.  Eq.  336;  Ray  v.  Doughty,  4  Blackf.  115;  Jones's 
App.,  8  Watts  &  S.  143;  Peters  v.  Beverly,  10  Peters,  532;  1  How.  134, 
Taylor  v.  Roberts,  3  Ala.  86;  State  v.  Guilford,  18  Ohio.  509;  Latrobe  v. 
Tiernan,  2  Md.  Ch.  480;  Worth  v.  McAden,  1  Dev.  &  B.  Eq.  109;  Boyd 
V.  Boyd,  3  Grat.  114;  Glenn  v.  McKim,  3  Gill,  366;  Stell's  App.,  10  Barr, 
522 


CHAP.  XIV.]  WHEN   LIABLE   FOR   COTRUSTEES.  [§  416. 

"  that  where  lands  or  leases  were  conveyed  to  two  or  more 
upon  trust,  and  one  of  them  receives  all  or  the  most  part  of 
the  profits,  and  after  dyeth  or  decayeth  in  his  estate,  his  co- 
trustee shall  not  be  charged  or  be  compelled  in  chancery  to 
answer  for  the  receipts  of  him  so  dying  or  decayed,  unless 
some  practice,  fraud,  or  evil  dealing  appear  to  have  been  in 
them  to  prejudice  the  trust ;  for  they  heAng  hy  law  joint- 
tenants,  or  tenants  in  common,  every  one  by  law  may  receive 
either  all  or  as  much  of  the  profits  as  he  can  come  by  ;  it  is 
no  breach  of  trust  to  permit  one  of  the  trustees  to  receive  all 
or  the  most  part  of  the  profits ;  it  falling  out  many  times  that 
some  of  the  trustees  live  far  from  the  lands,  and  are  put  in 
trust  out  of  other  respects  than  to  be  troubled  with  the  re- 
ceipt of  the  profits.  But  his  lordship  and  the  said  judges  did 
resolve,  that  if,  upon  the  proofs  or  circumstances,  the  court 
should  be  satisfied  that  there  had  been  any  dolus  malus,  or 
any  evil  practice,  fraud,  or  ill  intent  in  him  that  permitted 
his  companion  to  receive  the  whole  profits,  he  should  be 
charged  though  he  received  nothing."  And  the  same  doctrine 
has  been  acted  upon  from  that  day  to  this.^  Connivance,  co- 
operation, permission,  acquiescence,  or  participation  will  bring 
liability ;  ^  and  ignorance  of  the  default  of  a  cotrustee  if  it 
results  from  neglect  is  no  excuse,  as  where  one  trustee  col- 
lects a  fund  and  keeps  it  without  reinvestment,  the  other 
trustees  may  be  liable.^  When  a  trustee  voluntarily  deposits 
the  funds  with  a  cotrustee,  the  first  is  liable  if  lost  by  failure 
of  the  banker."* 

§  416.  In  the  same  case  of  Townley  v.  Sherborne,  it  was 
determined  that  if  the  trustees  joined  in  signing  a  receipt  for 
money,  they  should  each  be  responsible  for  it.^     But  where 

149;  Banks  v.  Wilkes,  3  Sandf.  Ch.  99.  And  see  Royall  v.  McKenzie, 
25  Ala.  363. 

1  Ibid. 

2  Hinson  v.  Williamson,  74  Ala.  180;  Knight  v.  Haynie,  Id.  542. 
8  Richards  v.  Seal,  2  Del.  Ch.  266. 

4  Bruen  v.  Gillet,  44  Hun,  298. 

*  Townley  v.  Sherborne,  Bridg.  35;  Spalding  v.  Shalmer,  1  Vern.  303; 

623 


§  416.]  GENEEAL   DUTIES   OF   TRUSTEES.  [CHAP.  XIV. 

the  administration  of  a  trust  is  vested  in  several  trustees, 
they  must  all  join  in  signing  a  receipt  for  the  principal  or 
capital  sum  of  the  trust  fund,  and  it  is  now  established  that 
a  trustee  who  joins  in  the  receipt  for  conformity^  but  without 
receiving  any  of  the  money,  shall  not  be  answerable  for  the 
misapplication  of  the  money  by  his  cotrustee  who  receives 
it ;  as  it  would  be  tyranny  to  punish  a  trustee  for  an  act 
which  the  nature  of  his  office  compelled  him  to  do.^  But 
in  such  case  the  burden  is  on  the  trustee  to  prove  that  his 
acknowledgment  of  the  receipt  of  the  money  was  merely  for 
conformity,  and  that  in  fact  he  received  none  of  the  money, 
and  that  his  cotrustee  received  it  all.^  If  there  is  no  evi- 
dence upon  this  point,  all  the  trustees  who  join  in  signing 
the  receipt  will  be  held  responsible  in  solido,  on  the  ground 
that  the  acknowledgment  in  the  receipt  is  prima  facie  evi- 
dence of  the  facts  stated.^     At  law  the  receipt  is  conclusive 

Sadler  v.  Hobbs,  2  Bro.  Ch.  lU;  Bradwell  v.  Catchpole,  cited  3  Swanst. 
78,  note  (a) ;  Fellowes  v.  Mitchell,  2  Vern.  516. 

1  In  re  Freyer,  3  K.  &  J.  317;  Brice  v.  Stokes,  11  Ves.  324;  3  Lead. 
Ca.  Eq.  730;  Harden  v.  Parsons,  1  Eden,  U7;  VVestley  i'.  Clarke,  Id. 
359;  Heaton  v.  Marriott,  cited  Pr.  Ch.  173;  Ex  parte  Belchier,  Amb.  219; 
Leigh  V.  Barry,  3  Atk.  584 ;  Fellowes  v.  Mitchell,  1  P.  Wms.  81 ;  Gregory 
V.  Gregory,  2  Y.  &  C.  316;  Sadler  v.  Hobbs,  2  Bro.  Ch.  117;  Chambers  u. 
Minchin,  7  Ves.  198;  Shipbrook  v.  Hinchinbrook,  16  Ves.  479;  Harrison 
V.  Graham,  3  Hill's  MS.  239,  cited  1  P.  Wras.  241 :  Carsey  v.  Barsham, 
cited  1  Sch  &  Lef.  344;  Anon.  Mose.  35;  Ex  parte  Wackerbath,  2  G.  &  J. 
151 ;  Kip  V.  Deniston,  4  Johns.  23 ,  Jones's  App.,  8  Watts  &  S.  147 ;  Irwin's 
App.,  35  Pa.  St.  294;  Sterrett's  App.,  2  Pa.  419;  Wallis  v.  Thornton,  2 
Brock.  434;  Monell  v.  Monell,  5  Johns.  Ch.  283;  Deaderick  v.  Cantrell, 
10  Yerg.  264;  Aplyn  v.  Brewer,  Pr.  Ch.  172;  Churchill  v.  Hodson,  1  P. 
Wms.  241;  Attorney-General  v.  Randell,  7  Bacon,  Ab.  184;  Murrell  v. 
Cox,  2  Vern.  173  ;  Terrell  v.  Mathews,  11  L.  J.  (n.  s  )  Ch.  31;  McMurray 
V.  Montgomery,  2  Swanst.  374;  Griffin  v.  Macaulay,  7  Grat.  476;  Worth 
V.  McAden,  1  Dev.  &  B.  Eq.  199;  Stowe  v.  Bowen,  99  Mass.  194. 

2  Brice  v.  Stokes,  11  Ves.  324 ;  Scurfield  v.  Howes,  3  Bro.  Ch.  95,  note 
(8);  Chambers  v.  Minchin,  7  Ves.  186;  Monell  v.  Monell,  5  Johns.  Ch. 
394;  Hall  v.  Carter,  8  Ga.  388;  Manahan  v.  Gibbons,  19  Johns.  427; 
Martindale  v.  Picquot,  3  K.  &  J.  317;  Cottam  v.  Eastern  Counties  R.  R. 
Co.,  1  John.  &  H.  243. 

8  Ibid.;  Westley  v.  Clarke,  1  Eden,  359;  Maccubbin  v.  Cromwell,  7 
G.  &  J.  157;  Hengst's  App.,  12  Harris,  413.     The  answer  of  the  trustee 
524 


CHAP.  XIV.]  WHEN   LIABLE   FOR   COTRUSTEES.  [§  417. 

evidence  and  estops  the  trustee  from  denying  that  he  re- 
ceived any  of  the  money ;  ^  but  a  court  of  equity  rejects 
estoppels,  and  pursues  the  actual  truth,  and  will  determine 
and  decree  according  to  the  verity  and  justice  of  the  fact.'"^ 
But  if  a  trustee,  signing  a  receipt,  receives  any  part  of  the 
money,  and  it  does  not  appear  how  much,  he  will  be  answer- 
able for  the  whole ;  as,  where  he  mixes  his  corn  with  an- 
other's heap,  he  must  lose  the  whole.^ 

§  417.  It  was  said  in  Townley  v.  Sherborne,*  that  individ- 
uals are  sometimes  joined  in  a  trust,  where  it  is  not  expected 
that  they  are  to  take  an  active  part  in  its  management ;  and 
it  is  well  settled  that  each  of  several  trustees  is  not  bound  to 
take  upon  himself  the  active  management  of  every  part  of 
a  trust ;  and  it  seems  that  the  management  of  the  whole  may 
be  left  to  any  one  of  the  number.^  So  trustees  may  appor- 
tion their  duties  among  themselves,  as  where  one  of  two 
guardians  accepted  the  trust,  saying  he  would  take  care  of 
the  real  estate,  but  would  have  nothing  to  do  with  receiving 
and  disbursing  money,  which  duties  the  other  guardian  as- 
sumed, it  was  held  that  the  former  was  not  answerable  for  the 
defaults  of  the  latter.^  It  sometimes  happens  that  the  con- 
venience or  necessities  of  business  require  the  trust  funds  to 
be  in  the  hands  of  one  trustee.  If  a  loss  happens  from  the 
default  of  such  trustee,  the  others  will  not  be  held  to  answer. 
As  where  a  bond  is  to  be  collected  by  one  trustee,  or  money 
is  put  in  the  hands  of  one  to  be  paid  away  ,  or  where  a  fund 
was  given  to  three  trustees,  one  in  London  and  two  in  Corn- 
wall, to  build  an  almshouse  in  London,  it  was  held  that  the 

in  chancery  would  not  be  sufficient  evidence  unless  responsive  to  the  bill. 
Monell  V.  Monell,  5  Johns.  Ch.  283;  Maccubbin  v.  Cromwell,  7  Gl.  &  J. 
157.     But  as  parties  are  now  witnesses,  the  rule  is  not  very  important. 

^  Harden  v.  Parsons,  1  Eden,  147. 

2  Ibid.;  Fellowes  v.  Mitchell,  1  P.  Wms.  83. 

8  Ibid.  *  Bridg.  35. 

6  Ray  V.  Doughty,  4  Blackf.  115;  Ochiltree  v.  Wright,  1  Dev.  &B.  Eq. 
336;  Jones's  App.,  8  Watts  &  S.  143;  State  v.  Guilford,  18  Ohio,  ^00. 

*  Jones's  App.,  8  Watts  &  S.  143.  But  see  Gill  v.  Attorney-General, 
Hardr.  314. 

525 


§  417.]  GENERAL   DUTIES    OF   TRUSTEES.  [CHAP.  XIV. 

fund  was  properly  in  the  hands  of  the  trustee  in  London,  and 
that  durino;  the  construction  of  the  almshouse  the  others  were 
not  answerable  for  the  loss  of  part  of  it  by  his  insolvency .^ 
The  same  rule  applies  where  the  shares  of  a  company  are 
required  to  be  in  the  name  of  a  single  individual ;  ^  and  so 
where  the  settlor  appoints  one  of  the  trustees  to  perform 
certain  acts,  or  make  certain  sales,  or  receive  certain  mon- 
eys.^ But  if  trustees  expressly  agree  to  be  answerable  for 
each  other,  courts  will  hold  them  to  their  agreement.^  So 
this  power  to  apportion  the  duties  of  the  trust,  or  the  rule 
that  a  trustee  not  receiving  the  money  shall  not  be  liable 
for  the  defaults  of  his  cotrustees,  does  not  excuse  him  for  not 
exercising  a  general  superintendence  and  care  over  the  trust, 
or  for  not  intervening,  if  the  fact  come  to  his  knowledge  that 
the  fund  is  unsafe,  or  that  it  ought  not  longer  to  remain 
under  the  control  of  the  other  trustee.^  Even  a  direct  pro- 
vision in  the  deed  of  settlement,  that  trustees  shall  not  be 
liable  for  the  defaults  of  their  cotrustees,  does  not  excuse 
them  from  this  general  care  and  superintendence,  and  from 
the  duty  of  intervening,  if  they  hear  any  fact  tending  to  call 
for  their  intervention ;  nor  will  it  justify  them  in  paying  over 
the  money  to  the  sole  credit  of  one  trustee  ;  and  generally  it 
will  not  authorize  them  to  do  any  acts  which  would  be  a 
breach  of  trust,  if  such  clause  was  not  in  the  deed  or  will.^ 

1  Attorney-General  v.  Randell,  2  Eq.  Ca.  Ab.  742;  7  Bacon,  Ab.  184; 
Clough  V.  Bond,  3  M.  &  Cr.  497;  Townley  u.  Sherborne,  Bridg.  35;  3 
Lead.  Ca.  Eq.  718,  notes;  Ex  parte  Griffin,  2  G.  &  J.  114;  Bacon  v. 
Bacon,  5  Ves.  331;  Hovey  v.  Blakeman,  4  Ves.  596;  Williams  v.  Nixon, 
2  Beav.  472;  Curtis  v.  Mason,  12  L.  J.  (n.  s.)  Ch.  442;  Broadhurst  t-. 
Balguy,  1  N.  C.  C.  28  ;  Hanbury  v.  Kirkland,  3  Sim.  265.  But  see  Cowell 
V.  Gatchcombe,  27  Beav.  568. 

2  Consterdine  v.  Consterdine,  31  Beav.  331. 

»  Davis  V.  Spurling,  1  R.  &  M.  64  ;  Paddon  v.  Richardson,  7  De  G., 
M.  &  G.  563 ;  Birls  v.  Betty,  6  Madd.  90. 

4  Leigh  V.  Barry,  3  Atk.  583;  Brazer  v.  Clark,  5  Pick.  96;  Town  v. 
Ammidown,  2  Pick.  535. 

6  Clark  V.  Clark,  8  Paige,  153;  Evans's  Est.,  2  Ash.  470. 

*  Mucklow  I'.  Fuller,  Jac.  198;  Williams  v.  Nixon,  2  Beav.  472;  Leigh 
V.  Barry,  3  Atk,  584;  Dawson  v.  Clarkj  18  Ves.  254;  Underwood  v.  Stevens, 
1  Mer.  712 ;  Hanbury  v.  Kirkland,  3  Sim.  265;  Langston  v.  Olivant,  Coop. 

526 


CHAP.  XIV.]  WHEN   LIABLE   FOR   COTRUSTEES.  [§  418. 

While  one  trustee  is  not  liable  for  the  defaults  of  cotrustees 
which  he  has  not  the  means  of  preventing  or  guarding  against, 
yet  he  must  exercise  due  care  in  the  approval  of  or  acquies- 
cence in  the  acts  of  his  associates.^  If  the  trustees  join  in 
accounting,  and  hold  themselves  out,  in  joint  accounts,  as 
acting  together  and  as  jointly  liable,  they  will  be  estopped  to 
deny  their  joint  liability  to  those  who  have  acted  on  a  knowl- 
edge of  such  accounts ;  and  this  would  be  almost  conclusive 
evidence  of  a  joint  liability  in  all  cases.^  So,  if  the  will  makes 
them  all  liable  for  the  acts  of  each,  or  contemplates  the  joint 
action  and  joint  liability  of  all,  they  cannot  excuse  themselves 
if  they  accept  the  trust.^ 

§  418.  Though  a  trustee  may  join  in  a  receipt  without  re- 
ceiving any  of  the  money,  and  may  not  be  liable  or  answer- 
able for  it,  yet  he  may  be  responsible  for  the  whole,  though 
he  receives  none ;  thus,  if  knowing  that  his  cotrustee  has 
no  character  or  credit,  and  is  unfit  to  manage  the  trust  funds, 
he  suffers  the  money  to  be  received  by  him,  or  to  remain 
in  his  hands,  he  will  be  answerable,  as  if  he  receives  it  him- 
self, on  the  ground  that  he  has  committed  a  breach  of  trust 
in  not  using  due  care  and  diligence  ;  *  and  the  same  rule  will 

33;  Brumridge  17.  Brumridge,  27  Beav.  5;  Rehden  v.  Wesley,  29  Beav. 
213;  Drosier  v.  Brereton,  15  Beav.  221;  Fenwick  v.  Greenwell,  10  Beav. 
418;  Pride  v.  Fooks,  2  Beav.  430;  Sadler  v.  Hobbs,  2  Bro.  Ch.  114;  Bone 
V.  Cook,  McClel.  168;  13  Price,  332;  Clough  v.  Dixon,  8  Sim.  594;  3  M. 
&  Cr.  490;  Dix  v.  Burford,  19  Beav.  409;  Litchfield  v.  White,  3  Selden, 
438;  Wilkins  y.  Hogg,  3  Gif.  116;  10  W.  R.  47;  Worral  v.  Harford,  8 
Ves.  8;  Moyle  v.  Moyle,  2  R.  &  M.  170;  Munch  v.  Cockerell,  9  Sim.  339 ; 
5  M.  &  Cr.  178  ;  Macdonnel  v.  Harding,  7  Sim.  176.  But  a  testator  can 
draw  the  indemnity  clause  so  broad  that  cotrustees  will  not  be  liable  even 
for  gross  negligence.     Wilkins  v.  Hogg,  3  Gif.  116;  10  W.  R.  47. 

1  Earle  v.  Earle,  93  N.  Y.  104. 

2  Hengst's  App.,  12  Harris,  413;  Clark's  App.,  6  Harris,  175;  Dun- 
commun's  App.,  5  Harris,  268. 

8  Burrill  v.  Sheil,  2  Barb.  457;  Contee  v.  Dawson,  2  Bland,  264  ;  Wood 
V.  Wood,  5  Paige,  .596;  Weigand's  App.,  4  Casey,  471. 

*  Clark  V.  Clark,  8  Paige,  153;  Wyman  v.  Jones,  4  Md.  Ch.  500; 
Elmendorf  v.  Lansing,  4  Johns.  Ch.  562;  Ringgold  v.  Ringgold,  1  H.  &  G. 
11;  State  v.  (Juilford,  15  Ohio,  593;  Pini  v.  Downing,  11  Serg.  &  R.  71 ; 

527 


§  418.]  GENERAL   DUTIES   OP   TRUSTEES.  [CHAP.  XIV. 

apply  if  he  suffers  the  money  to  remain  in  the  hands  of  his 
cotrustee,  however  competent  and  responsible,  longer  than 
is  necessary .1  It  is  also  the  duty  of  the  trustee  to  ascertain 
the  actual  facts,  and  not  rely  upon  the  bare  assertion  of  his 
cotrustee,  in  relation  to  the  condition  of  the  trust  fund.^ 
Thus,  where  two  trustees  allowed  their  cotrustee  to  open  a 
box  at  their  banker's  in  which  were  stocks  and  bonds,  and 
he  converted  some  of  the  trust  property  to  his  own  use, 
but  assured  his  cotrustees  that  all  was  right,  they  were  held 
to  answer  for  the  loss,  because  they  had  not  taken  the  pains 
to  ascertain  the  facts,  but  had  relied  upon  the  assertion  of 
their  cotrustee.^  So  trustees  must  ascertain  the  condition 
of  the  funds  at  all  times  within  which  a  reasonable  man 
should  ascertain  the  condition  of  his  own  property ;  as  where 
a  mortgage  to  three  trustees  had  been  paid  off,  and  the 
money  came  to  the  hands  of  one,  and  was  invested  in  bills 
and  notes  of  the  East  India  Company  payable  in  two  years, 
and  these  were  paid  into  the  hands  of  the  same  trustee  to 
whom  the  mortgage  had  been  paid,  and  the  acting  trustee 
asked  to  have  the  money  remain  in  his  hands  on  a  mortgage 
to  be  given ;  and  it  so  remained  for  a  year,  no  mortgage  be- 
ing executed,  the  other  trustees  taking  no  active  steps  for 
several  years  to  know  the  actual  condition  of  the  trust  fund  ; 
this  was  held  to  be  a  breach  of  trust,  and  they  were  decreed 
to  make  good  the  loss.*  A  trustee  is  bound  to  inquire  and 
ascertain  for  what  purpose  a  cotrustee  desires  the  money  ; 
what  investments  he  proposes  to  make,  and  what  securities 

Evans's  Est.,  2  Ash.  470;  Jones's  App.,  8  Watts  &  S.  147.  But  the  cir- 
cumstances must  be  such  as  would  put  a  reasonable  man  upon  his  guard 
in  relation  to  his  own  property.  Jones's  App.,  8  Watts  &  S.  147;  Lin- 
coln V.  Wright,  4  Beav.  427  ;  Lockwood  v.  Riley,  1  De  G.  &  J.  464. 

1  Brice  v.  Stokes,  11  Ves.  319;  Re  Freyer,  3  K.  &  J.  317;  Gregory  v. 
Gregory,  2  Y.  &  C.  313;  Bone  v.  Cook,  McClel.  168;  Thompsons.  Finch, 
22  Beav.  316;  Lincoln  v.  Wright,  4  Beav.  427. 

2  Thompson  v.  Finch,  22  Beav.  316;  8  De  G.,  M.  &  G.  560;  Hanbury 
V.  Kirkland,  3  Sim.  26.5;  Bates  v.  Underbill,  3  Redf.  (N.  Y.)  365. 

3  Mendes  v.  Guedalla,  2  John.  &  H.  259. 

*  Walker  v.  Syraonds,  3  Swanst.  1.  See  Thompson  v.  Finch,  22  Beav. 
320. 

528   . 


CHAP.  XIV.]  LIABILITY   FOR    COTRUSTEES.  [§  419. 

he  proposes  to  take,  and  he  must  take  pains  to  see  that  the 
proposed  investments  are  actually  made.^  If  a  trustee  per- 
forms his  duty  in  these  respects,  and  his  cotrustee,  in  spite 
of  these  precautions,  squanders  or  wastes  the  fund,  he  will 
not  be  answerable  therefor.  So  if  the  cotrustee  gets  posses- 
sion of  the  trust  fund  by  a  fraud  or  crime,  the  others  will  not 
be  liable.^  But  if  a  trustee  receive  any  portion  of  the  funds 
from  a  transaction,  he  must  personally  see  to  the  application 
of  them :  he  cannot  pass  them  over  to  his  cotrustee  for 
investment  or  distribution  ;  and  if  he  do  so,  he  will  be 
personally  responsible  for  the  acts  and  defaults  of  such  co- 
trustee.^ 

§  419.  In  the  original  case  of  Townley  v.  Sherborne,  it 
was  determined  that  if  there  was  any  dolus  mains,  or  any 
evil  practice,  or  fraud,  or  ill  intent  in  him  that  permitted  his 
companion  to  receive  the  whole  fund,  he  should  be  charged 
that  received  nothing.*  Thus,  if  one  trustee  stands  by 
and  sees  his  cotrustee  misemploy  or  misapply  the  money ;  ^ 
or  acquiesces  in  the  wrongful  use  of  the  money  by  his 
cotrustee ;  ^  or  if  a  trustee  acquiesces  in  his  cotrustee's 
retaining  the  money  in  his  hands  unnecessarily  ; "  or  if  he 

1  Hanbury  v.  Kirkland,  3  Sim.  265;  Broadhurst  v.  Balguy,  1  Y.  &  C. 
Ch.  16;  Thompson  v.  Fiuch,  22  Beav.  326. 

2  Cottam  V.  Eastern  Counties  R.  R.  Co.,  1  John.  &  H.  243;  Mendes  v. 
Guedalla,  2  John.  &  H.  259;  Barnard  v.  Bagshaw,  9  Jur.  (n.  s.)  220;  3 
De  G.,  J.  &  S.  355  ;  Trutch  v.  Lamprell,  20  Beav.  116 ;  Baynard  v.  Woolley, 
Id.  583;  Griffiths  v.  Porter,  25  Beav.  236;  Eager  v.  Barnes,  31  Beav.  579; 
Margetts  v.  Perks,  34  L.  J.  Ch.  109. 

3  Sterrett's  App.,  2  Pa.  219;  Clark's  App.,  6  Harris,  175;  Nyce's  App., 
5  Watts  &  S.  254;  Commonwealth  v.  McAlister,  4  Casey,  480;  Deaderick 
V.  Cantrell,  10  Yerg.  263 ;  McMurray  v.  Montgomery,  2  Swanst.  374 ;  Hugh- 
lett  V.  Hughlett,  5  Humph.  453 ;  Mumford  v.  Murray,  6  John.s.  Ch  1  ; 
Ray  V.  Doughty,  4  Blackf.  115;  Worth  v.  McAden,  1  Dev.  &  B.  Eq.  199; 
Graham  v.  Davidson,  2  Dev.  &  B.  Eq.  155 ;  Sparhawk  v.  Buell,  9  Vt.  41 ; 
Edmonds  v.  Grenshaw,  14  Peters,  166. 

*  Townley  v.  Sherborne,  Bridg.  35  ;  Mucklow  ?;.  Fuller,  Jac.  198. 
'  Williams  n.  Nixon,  2  Beav.  475. 

e  Booth  V.  Booth,  1  Beav.  125;  Dix  v.  Burford,  19  Beav.  409. 
'  Lincoln  v.  Wright,  4  Beav.  427;  James  v.   Frearson,  1  N.  C  C.  370; 
voi,.  I.  —  .04  529 


§  419.]  GENERAL   DUTIES   OP   TRUSTEES.  [CHAP.  XIV. 

connives  at  a  breach  of  trust  by  his  cotrustee  ;  ^  or  conceals 
such  breach  ;  ^  or  makes  any  misrepresentation  respecting  the 
investment  of  the  fund  ;  ^  or  if  he  does  any  act  to  put  the 
money  out  of  his  own  control  and  into  the  sole  power  of  his 
cotrustee,  as  by  joining  in  a  conversion,  of  the  property  and 
allowing  his  cotrustee  to  receive  and  retain  the  proceeds 
exclusively ;  *  or  if  he  makes  over  the  trust  fund  exclusively 
to  his  cotrustee  ;  ^  or  executes  a  power  of  attorney  to  him  ;  ^ 
or  signs  a  draft  or  order,  or  assigns  a  mortgage,  enabling  his 
cotrustee  to  deal  with  the  investments  exclusively  ;  '^  or  if  he 
suffers  the  trust  fund  to  be  invested  in  the  sole  name  of  his 
cotrustee  ;  ^  or  to  be  paid  into  bank  to  his  sole  credit,^  —  in  all 
these  cases  there  is  an  actual  or  constructive  breach  of  trust, 
which  renders  all  the  trustees  liable  for  any  loss  ;  and  so  if 
a  trustee  does  not  collect  a  debt  due  to  the  estate  from  his 
cotrustee.!.^  In  all  cases,  if  a  trustee  becomes  aware  of  any 
fact  tending  to  show  that  his  cotrustee  is  committing  a  breach 
of  trust,  or  if  he  learns  any  fact  endangering  the  trust  fund, 
he  must  communicate  it  to  his  cotrustees  or  make  applica- 

Evans's  Est.,  2  Ash.  470;  Pirn  v.  Downing,  11  Serg.  &  R.  71;  Styles  v. 
Guy,  1  H.  &  Tw.  523;  1  Mac.  &  Gor.  422;  16  Sim.  230;  Scully  y.  Delany, 
2  Ir.  Eq.  165;  Egbert  v.  Butter,  21  Beav.  560;  West  v.  Jones,  1  Sim. 
(N.  s.)  205. 

1  Boardman  v.  Mosman,  1  Bro.  Ch.  68.  ^  ibid. 

3  Bates  V.  Scales,  12  Ves.  402. 

*  Sadler  v.  Hobbs,  2  Bro.  Ch.  114;  Chambers  v.  Minchin,  7  Yes.  198; 
Hanbury  v.  Kirkland,  3  Sim.  265;  Clough  v.  Bond,  3  M.  &  Cr.  496;  Scur- 
field  V.  Howes,  3  Bro.  Ch.  90;  Shipbrook  v.  Hinchiubrook,  11  Ves.  252; 
Brice  v.  Stokes,  Id.  319;  Underwood  v.  Stevens,  1  Mer.  713;  Brad  well  v. 
Catchpole,  3  Swanst.  78  n. ;  Williams  v.  Nixon,  2  Beav.  472;  Broadhurst 
V.  Balguy,  1  N.  C.  C.  16;  Curtis  v.  Mason,  12  L.  J.  (n.  s.)  Ch.  443. 

5  Keble  v.  Thompson,  3  Bro.  Ch.  Ill;  Langford  v.  Gascoyne,  11  Ves. 
333;  French  v.  Hobson,  9  Ves.  103;  Joy  v.  Campbell,  1  Sch.  &  Lef.  341; 
Moses  V.  Levi,  3  Y.  &  C.  359. 

^  Harrison  v.  Graham,  1  P.  Wms.  241,  n. ;  Hewett  v.  Foster,  6  Beav. 
259;  Monell  v.  Monell,  5  Johns.  Ch.  283;  Pim  v.  Downing,  11  Serg.  & 
R.  66;  Duncommun's  App.,  5  Harris,  268. 

'  Sadler  w.  Hobbs,  2  Bro.  Ch.  114;  Broadhurst  y.  Balguy,  1  N.  C.  C.  16. 

8  Walker  v.  Symonds,  3  Swanst.  58. 

9  Clough  V.  Bond.  3  M.  &  Cr.  400. 

w  Mucklow  V.  Fuller,  Jac.  198;  Candler  c.  TiUett,  22  Beav.  254. 
530 


CHAP,  XIV.]  LIABILITY   FOR   COTRUSTEES.  [§  420. 

tion  to  the  court,^  and  take  active  measures  to  protect  the 
fund,  or  he  will  be  personally  liable  for  its  loss.  If  a  trustee 
himself  receives  the  trust  fund  or  part  of  it,  and  pays  it 
over  to  his  cotrustee,  who  wastes  it,  he  will  be  liable  for 
it  ;2  and  so  if  he  permits  his  cotrustee  to  receive  money,  hav- 
ing notice  that  it  will  be  misapplied,  or  if  he  is  guilty  of  any 
negligence  or  want  of  reasonable  care.^ 

§  419  a.  If  the  trust  instrument  gives  the  cestui  a  right  to 
appoint  one  to  whom  the  trustee  shall  convey,  this  power 
cannot  be  exercised  by  will,  for  the  will  takes  effect  only  at 
the  death  of  the  cestui,  and  that  very  event  terminates  the 
relation  of  trust  between  the  trustee  and  cestui.^  This  rea- 
soning seems  very  flimsy,  and  likely  to  produce  injustice  if 
applied  to  cases,  where  the  facts  are  different  from  those  in 
the  above  case,  where  the  title  was  held  to  have  passed  by  the 
will  itself,  though  not  by  the  trustee's  deed  in  pursuance  of 
the  will. 

§  420.  In  a  few  cases,  it  has  been  held  that,  if  trustees  join 
in  executing  a  power  of  sale,  and  one  receive  the  money,  all 
must  be  held  answerable,  if  it  is  lost  by  the  one  that  receives 
it.^  These  decisions  have  been  founded  upon  the  rule,  that 
all  the  trustees  who  join  in  any  transaction  must  be  responsi- 

1  Wayman  v.  Jones,  4  Md.  Ch.  506 ;  Chertsey  v.  Market,  6  Price,  279; 
Powlet  V.  Herbert,  1  Ves.  Jr.  297;  Franco  v.  Franco,  3  Ves,  75;  Walker 
V.  Symonds,  3  Swanst.  71;  Brice  v.  Stokes,  11  Ves.  319;  Olive  v.  Court,  8 
Price,  166;  Attorney-general  v.  Holland,  2  Y.  &  C.  699;  Booth  v.  Booth, 

1  Beav.  125;  Williams  v.  Nixon,  2  Beav.  472;  Blackwood  v.  Burrows,  2 
Conn.  &  Laws.  477;  Holcomb  v.  Holcomb,  2  Beas.  413;  Crane  v.  Ilearn, 
26  N.  J.  Eq.  378. 

2  Mumford  v.  Murray,  6  Johns.  Ch.  1;  Monell  v.  Monell,  5  Johns.  Ch. 
283;  Clark  v.  Clark,  8  Paige,  153;  Ringgold  v.  Ringgold,  1  H.  &  G.  11 ; 
Glenn  v.  McKim,  3  Gill,  366;  Evans's  Est.,  2  Ash.  470;  Graham  v.  Austin, 

2  Grat.  273;  Graham  v.  Davidson,  2  Dev.  &  B.  Eq.  155. 

3  Schenck  v.  Schenck,  1  Green,  Ch.  174. 
*  Bradstreet  v.  Kinsella,  70  Mo.  63. 

5  Spencer  v.  Spencer,  11  Paige,  299;  Ringgold  v.  Ringgold,  1  H.  &  G. 
11;  Maccubbin  v.  Cromwell,  7  G.  &  J.  157;  Deaderick  v.  Cantrell,  10 
Yerg.  263;  Wallace  v.  Thornton,  2  Brocken.  434;  Hauser  v.  Lehman,  2 
Ired.  Eq.  594. 

531 


§  420.]  GENERAL   DUTIES   OF   TRUSTEES.  [CHAP.  XIV. 

ble  for  carrying  it  through.  But  they  ignore  the  other  rule, 
that  a  power  must  be  strictly  executed  by  all  the  persons  to 
whom  it  is  given,  and  that  if  a  trustee  joins  in  the  power,  and 
signs  receipts  for  conformity,  but  receives  none  of  the  money, 
omits  no  duty,  and  does  no  act  tending  to  a  breach  of  the 
trust,  he  will  not  be  held  for  a  loss  occasioned  by  a  breach 
of  trust  by  the  other  trustees.  The  great  preponderance  of 
autliority  is,  that  a  sale  under  a  power  is  not  different  from 
the  execution  of  a  receipt  for  the  trust  moneys.^  If,  how- 
ever, a  proper  investment  of  the  money  received  under  a  sale 
is  once  made,  the  liability  of  a  non-acting  trustee  ceases  under 
all  the  cases.'^  If  a  trustee  renounces  the  trust,  he,  of  course, 
cannot  be  liable  for  a  breach  of  the  trust  by  the  other  trus- 
tees, unless  the  trust  fund  is  in  some  manner  in  his  hands, 
and  is  misapplied  by  him.^  So  the  estate  of  a  deceased  trus- 
tee cannot  be  liable  for  a  breach  of  trust  by  a  surviving 
trustee,  after  the  decease  of  a  cotrustee.^  A  distinction  has 
been  attempted  between  discretionary  trusts  and  directory 
trusts  as  follows :  it  has  been  said,  that,  in  discretionary 
trusts,  that  is,  where  the  funds  may  be  invested  or  employed 
according  to  the  discretion  of  the  trustees,  a  non-acting  trus- 
tee will  not  be  responsible  for  a  misapplication  of  the  fund 
by  a  cotrustee,  unless  he  is  guilty  of  some  fraud  or  negligence 
that  amounts  to  a  breach  of  trust,  upon  the  principles  before 
stated ;  °  but  wliere  a  will  is  peremptory  that  certain  invest- 
ments shall  be  made  by  the  trustees,  all  the  trustees  will  be 
liable  if  the  directions  of  the  will  are  not  carried  out.^     But 

1  See  ante,  §  41fi,  note ;  Griffin  v.  Macauley,  7  Grat.  476 ;  Atcheson  v. 
Robertson,  3  Rich.  Eq.  132;  Kip  v.  Deniston,  14  Johns.  23;  Jones's  App., 
8  Watts  &  S.  147;  Boyd  v.  Boyd,  3  Grat.  114.  But  if  a  trustee  not  only 
join  in  the  execution  of  the  power,  but  in  receiving  the  money,  he  must 
keep  it  in  the  joint  names  of  the  trustees  until  invested;  and  he  cannot 
pay  it  over  to  his  cotrustee  without  being  responsible  for  it  if  lost.  Ring- 
gold V.  Ringgold,  1  H.  &  G.  11 ;  Glenn  v.  McKim,  3  Gill,  366. 

2  Glenn  v.  McKim,  3  Gill,  366. 

8  Claggett  V.  Hall,  9  G.  &  J.  80. 

*  Brazer  v.  Clark,  .5  Pick.  96;  Towne  v.  Ammidown.  20  Pick.  535. 
5  Deaderick  i'.  Cantrell,  10  Yerg.  264;  Thomas  v.  Scruggs,  Id.  400. 
«  Ibid. 

532 


CHAP.  XIV.]  LIABILITY   OF    COEXECUTORS.  [§  421. 

these  directory  trusts  may  be  executed  by  a  part  of  the  trus- 
tees, and  the  others  may  join  for  conformity,  without  doing 
more  than  is  absolutely  necessary  to  accomplish  the  trust, 
and  therefore  these  trusts  fall  within  the  rule,  that  a  trustee 
who  signs  receipts  for  conformity,  and  does  no  more,  is  not 
liable  for  a  breach  of  trust  by  his  cotrustee.^  'But  if  the  will 
expressly  provide  for  the  joint  action  and  responsibility  of 
the  executors  or  trustees,  it  will  be  binding  upon  all  those 
who  assume  the  trust,  and  render  them  all  liable  for  any  loss 
through  the  default  of  one.^ 

§  420  a.  Where  there  are  two  trustees,  and  the  manage- 
ment of  the  trust  is  left  to  one,  and  the  acting  trustee  com- 
mits a  breach  of  trust,  the  passive  trustee  is  not  entitled  to 
indemnity  from  the  acting  trustee,  unless  there  are  some 
special  circumstances,  as  where  the  acting  trustee  is  solicitor 
for  the  trust,  or  has  derived  a  personal  benefit  from  his 
breach  of  trust.^ 

§  421.  Following  the  rule  as  to  cotrustees,  executors  are 
generally  liable  only  for  their  own  acts,  and  not  for  the  acts 
of  their  coexecutors.*  But  while  cotrustees  may  not  be  liable 
for  money  which  they  did  not  receive,  although  they  joined 
in  the  receipt,  coexecutors  are  always  liable  if  they  join  in 
the  receipts.  The  reason  is  this  :  trustees  must  join  in  many 
acts,  they  having  for  the  most  part  a  joint  power,  while  ex- 

1  Ante,  §  416,  note. 

•2  Weigand's  App.,  4  Casey,  471 ;  Wood  v.  Wood,  5  Paige,  596;  Contee 
V.  Dawson,  2  Bland,  264;  Burril]  v.  Shell,  2  Barb.  457. 

3  Bahin  v.  Hughes,  31  Ch.  D.  390. 

*  Hargthorpe  v.  Milforth,  Cro.  Eliz.  318;  Anon.  Dyer,  210  a;  Went. 
Ex.  306 ;  Williams  v.  Nixon,  2  Beav.  472 ;  Peters  v.  Beverly,  10  Peters,  532 ; 

1  How.  134;  Sutherland  v-  Brush,  7  Johns.  Ch.  17;  White  v.  Bullock, 
20  Barb.  91;  Douglas  v.  Satterlee,  11  Johns.  16;  Banks  i'.  Wilkes,  3 
Sandf.  Ch.  9Q;  Moore  v.  Tandy,  3  Bibb,  97;  Fennimore  v.  Fennimore, 

2  Green,  Ch.  292;  Call  v.  Ewing,  1  Blackf.  301;  Williams  v.  Miiitland,  1 
Ired.  92;  Kerr  v.  Kirkpatrick,  8  Ired.  Eq.  137;  Clarke  v.  Blount,  2  Dev. 
Ch.  51;  Clarke  v.  Jenkins,  3  Rich.  Eq.  318;  Knox  v.  Pickett,  4  Des.  190; 
Kerr  v.  Water,  19  Ga.  136;  Charlton  v.  Durham,  L.  R.  4  Ch.  433;  McKim 
V.  Aulbach,  130  Mass.  481. 

533 


-§  421.]  GENERAL   DUTIES   OF   TRUSTEES.  [CHAP.  XIY. 

ecutors  have  a  several  power,  over  the  estate.  Each  executor 
has  an  independent  right  over  the  personal  property  of  his 
testator  :  he  may  sell  it,  and  receive  the  purchase-money,  and 
give  receipts  in  his  own  name.  If,  therefore,  an  executor 
joins  his  coexecutor  in  signing  a  receipt,  he  does  an  unmean- 
ing act,  unless  he  intended  to  render  himself  jointly  answer- 
able for  the  money  ;  and  so  the  court  hold,  that  if  an  executor 
joins  in  giving  a  receipt  for  money  he  shall  be  answerable, 
whether  he  received  any  of  it  or  permitted  his  coexecutor  to 
receive  the  whole.^  So,  if  an  executor  joins  in  executing  a 
power  of  sale,  given  in  the  will,  he  will  be  responsible  for 
the  appropriation  of  the  proceeds,  though  his  coexecutor  re- 
ceived all  the  money .2  An  attempt  has  been  made  to  break 
down  these  distinctions  between  executors  and  trustees,  and 
to  establish  the  rule,  that  no  intention  to  be  jointly  answer- 
able can  be  inferred  from  the  mere  fact  of  signing  a  receipt 
without  receiving  any  part  of  the  money  either  separately  or 
jointly.^  And  it  appears  now  to  be  well  settled,  that  if  the 
joint  receipt  is  purely  nugatory,  and  no  funds  pass  upon  it 
into  the  hands  of  either  executor,  a  coexecutor  will  not  be 
liable.^     So  far  the  doctrine  of  Lord  Northington  in  Westerly 

1  Aplyn  V.  Brewer,  Pr.  Ch.  173;  Murrill  v.  Cox,  2  Vern.  560  ;  Ex  parte 
Belchier,  Amb.  219  ;  Leigh  v.  Barry,  3  Atk.  584;  Harrison  i'.  Graham,  1 
P.  Wras.  241,  cited  Darwell  v.  Darwell,  2  Eq.  Ca.  Ab.  456;  Gregory  v. 
Gregory,  2  Y.  &  C.  316;  Hall  v.  Carter,  8  Ga.  388;  Monell  v.  Monell,  5 
Johns.  Ch.  283;  Monahan  v.  Gibbons,  19  Johns.  427;  Sterrett's  App.,  2 
Pa  219  ;  Jones's  App.,  8  Watts  &  S.  143;  Johnson  v.  Johnson,  2  HiU,  Eq. 
290;  Clarke  v.  Jenkins,.  3  Rich.  Eq.  318. 

2  Ochiltree  v.  Wright,  1  Dev.  &  B.  Eq.  336  ;  Hauser  v.  Lehman,  2  Ired. 
Eq.  594;  Mathews  v.  Mathews,  1  McMul.  Eq.  410;  Johnson  v.  Johnson, 
2  Hill,  Eq.  277;  McMurray  v.  Montgomery,  2  Swanst  374;  Deaderick  v. 
Cantrell,  10  Yerg.  263 

3  Westerly  v.  Clarke,  1  Ed.  537;  1  Dick.  329;  Candler  v.  Tillett,  22 
Beav.  2.57;  Harden  v.  Parsons,  1  Ed  147;  Churchill  v.  Hobson,  1  P.  Wms. 
241,  n.;  Stell's  App.,  10  Barr,  1.52;  McKair's  App.,  4  Rawle,  145;  Ochil- 
tree V.  Wright,  1  Dev.  &  B.  Eq.  336;  Doyle  v.  Blake,  2  Sch.  &  Lef.  242; 
McKim  V.  Aulbach,  130  ]\Iass.  481. 

4  Westerly  v.  Clarke,  1  Ed.  537;  Scurfield  v.  Howes,  3  Bro.  Ch.  94; 
Hovey  v.  Blakeman,  4  Ves.  608;  Chambers  r.  Minchin,  7  Ves.  198;  Brice 
V.  Stokes,  11  Ves.  319;  3  Lead.  Ca.  Eq.  557,  558. 

534 


CHAP.  XIV.]  LIABILITY    OF   COEXECUTORS.  [§  422. 

V.  Clarke  has  been  agreed  to,  though  the  case  itself  seemed 
to  go  further.!  Lord  Harcourt,  in  Churchill  v.  Hobson,^ 
started  another  distinction,  tliat  executors  who  joined  in  the 
receipt  were  liable  to  creditors,  though  they  did  not  receive 
the  money,  while  they  were  not  liable  to  legatees  or  heirs  ; 
but  this  distinction  has  no  standing  in  a  court  of  equity,  what- 
ever may  be  the  rule  at  law,  and  is  now  overruled.^ 

§  422.  If  an  executor  does  any  act  to  transfer  the  property 
into  the  exclusive  control  of  a  coexecutor,  and  thus  enables 
his  coexecutor  to  misapply  Uie  same,  he  will  be  liable ;  *  as  if 
he  joins  in  drawing^  or  indorsing^  a  bill  or  note,  or  delivers 
or  assigns  securities  to  his  coexecutor  to  enable  him  to  receive 
the  money  alone,"  or  if  he  gives  him  a  power  of  attorney,^  or 
does  any  other  act  that  enables  his  coexecutor  to  misapply  the 
money  ;  and  so  it  was  held,  '•  that,  if  by  agreement  between 
the  executors,  one  be  to  receive  and  intermeddle  with  such 
a  part  of  the  estate,  and  the  other  with  such  a  part,  each  of 
them  will  be  chargeable  for  the  whole,  because  the  receipts 
of  each  are  pursuant  to  the  agreement  made  betwixt  both."  ^ 

1  Scurfield  v.  Howes,  3  Bro.  Ch.  94;  Hovey  v.  Blakeman,  4  Ves.  608; 
Chambers  v.  Minchin,  7  Yes.  198;  Brice  v.  Stokes,  11  Vesi  325;  3  Lead. 
Ca.  Eq.  725-759;  Walker  v.  Symonds,  3  Swanst.  64;  Shipbrook  v.  Hinch- 
inbrook,  16  Ves.  479;  Joy  v.  Campbell,  1  Sch.  &  Lef.  341 ;  Doyle  v.  Blake, 
2  Sch.  &  Lef.  242. 

2  1  P.  Wras.  241 ;  Gibbs  v.  Herring,  Pr.  Ch.  49 ;  Harden  v.  Parsons,  1 
Eden,  147. 

3  Sadler  v.  Hobbs,  2  Brown,  Ch.  117;  Doyle  v.  Blake,  2  Sch.  &  Lef. 
239. 

*  Townsbend  v.  Barber,  1  Dick.  356;  Moses  v.  Levi,  3  Y.  &  C.  359; 
Candler  v.  Tillett,  22  Beav.  2G3;  Clough  v.  Dixon,  3  Myl.  &  Cr.  497; 
Dines  v.  Scott,  T.  &  R.  361;  Edmonds  v.  Crenshaw,  14  Pet.  166;  Spar- 
hawk  ('.  Buell,  9  Vt.  41 ;  Adair  v.  Brimmer,  74  N.  Y.  539. 

6  Sadler  v.  Hobbs,  2  Bro.  Ch.  114. 
^  Hovey  v.  Blakeman,  4  Ves.  608. 

7  Candler  v.  Tillett,  22  Beav.  236. 

8  Doyle  V.  Blake,  2  Sch.  &  Lef.  231 ;  Lees  v.  Sanderson,  4  Sim.  28; 
Kilbee  v.  Sneyd.  2  Moll.  200. 

9  dill  V.  Attorney-General,  Hardw.  314;  Moses  v.  Levi,  3  Y.  &  C.  359; 
Lewis  V.  Nobbs,  L.  E.  8  Ch.  D.  591. 

535 


§  424.]  GENERAL   DUTIES    OP   TRUSTEES.  [CHAP.  XIV. 

Probably  the  case  would  not  now  be  followed,  but  it  illustrates 
the  principle. 

§  423.  But  if  the  act  is  such  that  it  is  absolutely  necessary 
that  the  executors  should  all  join  in  it,  their  liability  will  be 
put  upon  the  same  ground  as  the  liability  of  trustees  joining ; 
as,  if  it  is  necessary  that  they  should  indorse  a  bill  in  order 
to  collect  it,^  or  that  they  should  join  in  transferring  stock.^ 
But  even  if  the  act  is  indispensable,  it  is  still  the  duty  of  the 
executor  to  see  that  it  is  consistent  with  a  due  execution  of 
the  trust,^  and  he  must  not  rely  upon  the  representations  or 
assertions  of  his  coexecutor,  as  to  its  necessity.  He  must  use 
due  diligence  and  make  due  investigations  to  ascertain  if  the 
representations  are  true ;  *  as  where  the  debts  should  have 
been  long  paid  in  the  ordinary  course  of  administration  a  co- 
executor  applied  to  the  other  to  join  in  a  sale  of  stocks  to  pay 
the  debts,  and  the  executor  inquired  and  learned  that  there 
were  debts  to  be  paid,  but  it  afterwards  appeared  that  the 
coexecutor  had  the  money  to  pay  the  debts  in  his  own  hands ; 
the  executor  who  joined  in  conveying  the  stocks  was  held  for 
the  default  of  his  coexecutor,  on  the  ground  of  negligence  in 
not  knowing  how  the  assets  in  the  hands  of  the  coexecutor 
were  disposed  of,  and  how  it  happened  that  the  debts  re- 
mained unpaid.^ 

§  424.  So  an  executor  will  be  called  upon  to  make  good 
the  loss  of  money  that  he  allows  to  remain  two  years  or  any 
other  unreasonable  time  in  the  hands  of  his  coexecutor  ;  ^  but 

1  Hovey  v.  Blakeraan,  4  Yes.  608. 

2  Chambers  v.  Minchin,  7  Ves.  197,-  Shipbrook  v  Hiuchiubrook,  11 
Ves.  254;  16  Ves.  479  ;  Terrell  v.  Mathews,  1  Mac.  &  G.  434,  n. ;  Murrill 
V.  Cox,  2  Vern.  570;  Scurfield  ;■.  Howes,  3  Bro.  Ch.  94;  Moses  v.  Levi,  3 
Y.  &C.  359. 

3  Ibid.;  Underwood  v.  Stevens,  1  Mer.  712;  Bick  v.  ^Motley,  2  Myl. 
&  K.  312;  Williams  v.  Nixon,  2  Beav  472;  Hewett  i-.  Foster,  6  Beav. 
259. 

4  Ibid. 

5  Shipbrook  v.  Hinchinbrook,  11  Ves.  254;  Bick  v.  Mathews,  3  Myl.  & 
K.  312;  Clark  v.  Clark,  8  Paige,  152. 

6  Scurfield  v.  Howes,  3  Bro.  Ch.  91;  Styles  v.  Guy,  1  Mac.  &  G.  422; 

536 


CHAP.  XIV.]       LIABILITY   FOR   ACTS   OP   COTRUSTEE.  [§  426. 

he  will  not  be  called  upon  to  repay  that  part  which  he  can 
show  that  his  coexecutor  actually  expended  in  the  execution 
of  the  trust.^  So,  if  an  executor  neglects  for  an  unreasonable 
time  to  insist  upon  the  payment  of  a  debt  to  the  estate  due 
from  his  coexecutor,  he  will  be  liable  to  pay  the  debt  him- 
self.2 

§  425.  The  same  rules  that  apply  to  the  powers  and  lia- 
bilities of  coexecutors  apply  also  to  the  powers  and  liabilities 
of  joint  administrators.  There  is  one  dictum  that  the  liability 
of  joint  administrators  is  like  the  liability  of  cotrustees,^  but 
it  is  well  settled  that  the  liability  of  joint  administrators  and 
coexecutors  is  identical.* 

§  426.  It  must  be  borne  in  mind,  that  in  the  United  States, 
administrators,  executors,  guardians,  and  a  large  class  of 
trustees,  are  appointed  by  judges  of  probate,  surrogates,  ordi- 
naries, or  officers  exercising  a  similar  jurisdiction.  All  trus- 
tees appointed  under  wills,  proved  and  recorded  in  probate 
courts,  are  appointed  by  decrees  of  the  court  in  the  same 
manner  as  executors.  In  many  cases,  a  bond  with  sureties 
is  required  as  a  prerequisite  to  an  appointment  and  qualifi- 
cation to  act,  unless  such  bond  is  expressly  waived  by  the 
testator  or  the  cestui  que  trust.  This  bond  generally  runs  to 
the  judge  or  some  officer  for  the  use  and  protection  of  those 
beneficially  interested  in  the  estate.  If  it  is  a  joint  bond, 
executed  by  all  the  joint  administrators,  guardians,  coexecu- 
tors or  cotrustees,  it  is  in  the  nature  of  an  agreement  to  be 

1  H.  &  Tw.  523;  Egbert  v.  Butter,  21  Beav.  560;  Lincoln  v.  Wright,  4 
Beav.  427. 

1  Shipbrook  v.  Hinchinbrook,  11  Ves.  252;  16  Ves.  477;  Williams  v. 
Nixon,  2  Beav.  472;  Kilbee  v.  Sneyd,  2  Moll.  213;  Underwood  v.  Stevens, 
1  Mer.  172;  Brice  v.  Stokes,  11  Ves.  328;  Hewett  v.  Foster,  6  Beav.  259. 

2  Styles  V.  Guy,  1  Mac.  &  G.  422;  1  H.  &  Tw.  .523;  Egbert  v.  Butter, 
21  Beav.  .560;  Scully  v.  Delany,  2  Ir.  Eq.  165;  Candler  v.  Tillett,  22 
Beav.  257  ;  Carter  v.  Cutting,  5  Munf.  223. 

8  Hudson  V.  Hudson,  1  Atk.  460. 

*  Willand  v.  Fenn,  2  Ves.  267,  cited  ;  Murray  v.  Blatchford,  1  Wend. 
583  ;  O'Neall  i-.  Herbert,  1  McMul.  Eq  495. 

537 


§  426.]  GENERAL   DUTIES   OF   TRUSTEES.  [CHAP.  XIV. 

answerable  for  each  other's  acts  and  defaults.  The  remedy- 
fur  a  breach  of  trust  in  such  cases  is  a  suit  upon  the  bond 
ill  the  name  of  the  proper  person  for  the  benefit  of  those 
interested,  against  all  the  joint  makers  and  sureties  of  the 
bond ;  and  any  breaches  of  trust,  committed  by  either  or  all 
of  the  trustees,  maj  be  given  in  evidence,  and  a  judgment 
against  all  will  be  rendered,  although  the  breach  of  trust  was 
committed  by  one  alone. ^  This  joint  liability  of  all  the 
cotrustees  under  a  joint  bond  results  from  the  nature  of  the 
bond,  and  from  the  technical  nature  of  an  action  at  law  for 
a  breach  of  the  bond  by  a  breach  of  the  trust.  If,  however, 
one  of  the  coexecutors  or  cotrustees  dies  and  a  breach  of 
trust  is  committed  by  the  survivor  after  his  death,  the  estate 
of  the  deceased  executor  cannot  be  made  liable  for  the 
breach  of  the  trust.^  It  will  be  seen  at  once,  that  very 
few  of  the  rules  heretofore  stated  in  relation  to  the  liabilities 
of  executors  or  trustees  for  the  acts  and  defaults  of  their 
coexecutors  or  cotrustees  have  any  bearing  upon  the  liability 
of  cotrustees  who  have  given  a  joint  bond  for  the  faithful 
execution  of  the  trust.  The  statutes  of  many  of  the  States, 
however,  provide  that  separate  bonds  with  sureties  may  be 
taken  from  each  of  the  administrators,  executors,  guardians, 
or  trustees,  as  the  case  may  be.  And  where  separate  bonds 
are  taken  from  each  of  the  executors  or  trustee,  the  liability 
of  the  executor  or  trustee  for  the  acts  and  defaults  of  his 
coexecutor  or  cotrustee  would  be  governed  by  the  rules  and 
principles  hereinbefore  stated.^  But  if  they  sign  a  joint  bond, 
they  are  jointly  liable.* 

1  Ames  V.  Armstrong,  106  Mass.  3.5;  Hill  v.  Davis,  4  Mass.  137 ,  Brazer 
V.  Clark,  5  Pick.  96;  Towne  v.  Ammidown,  20  Pick.  535;  Newcombe  v. 
Williams,  9  Met.  525;  Sparhawk  r.  Buell,  9  Vt.  41;  Boyd  v.  Boyd,  1 
Watts,  368;  Bostick  v.  Elliott,  3  Head,  507;  Braxton  v.  State,  25  Ind. 
82;  Jeffries  v.  Lawson,  39  Miss.  791;  Gayden  v.  Gayden,  1  ^NIclMul.  Eq. 
435;  Hughlett  v.  Hughlett,  5  Humph.  453;  Clarke  v.  State,  6  G.  &  J.  288; 
South  V.  Hay,  3  Mon.  88;  Anderson  v.  Miller,  6  J.  J.  Marsh.  568;  Morrow 
V.  Peyton,  8  Leigh,  54  ;  Babcock  v.  Hubbard,  2  Conn.  539. 

2  Brazer  v.  Clark,  5  Pick.  96;  Towne  v.  Ammidown,  20  Pick.  535. 
8  McKim  V.  Aulbach,  130  Mass.  481. 

•*  Ames  V.  Armstrong,  106  Mass.  18. 

538 


CHAP.  XIV.]  TRUSTEES   CAN   MAKE   NO    PROFIT.  [§  427. 

§  427.  Trustees  hold  a  position  of  trust  and  confidence. 
The  legal  title  of  the  trust  property  is  in  them,  and  generally 
its  whole  management  and  control  is  in  their  hands.  At  the 
same  time  the  beneficiaries  of  the  trust  may  be  women,  or 
children,  or  persons  incompetent  to  protect  their  own  inter- 
ests. For  these  reasons,  to  protect  the  weak  and  helpless 
on  the  one  hand,  and  to  prevent  trustees  from  using  their 
position  and  influence  for  their  own  gain,  and  to  prevent 
them  from  hazarding  the  trust  property  upon  what  they  may 
think  to  be  profitable  speculations,  on  the  other,  they  are  not 
allowed  to  make  any  profit  from  their  office.  They  cannot 
use  the  trust  property,  nor  their  relation  to  it,  for  their  own 
personal  advantage.  All  the  power  and  influence  which  the 
possession  of  the  trust  fund  gives  must  be  used  for  the  advan- 
tage and  profit  of  the  beneficial  owners,  and  not  for  the  per- 
sonal gain  and  emolument  of  the  trustee.  No  other  rule  would 
be  safe ;  nor  would  it  be  possible  for  courts  to  apply  any 
other  rule,  as  between  trustee  and  cestui  que  trust}  This 
rule  is  so  stringent  that  Lord  Eldon  once  sent  a  case  to  a 
master  to  inquire  whether  the  privilege  of  sporting  on  the 
trust  estate  could  be  let  for  the  benefit  of  the  cestui  que 
trust ;  if  not,  he  thought  the  game  should  belong  to  the 
heir ;  the  trustee  might  appoint  a  game-keeper  for  the  preser- 
vation of  game  for  the  heir,  but  he  ought  not  to  keep  up 
a  lodge  for  his  own  pleasure.^  So  where  a  trustee  retired 
from  the  office  in  consideration  that  his  successor  paid  him 
a  sum  of  money,  it  was  held  that  the  money  so  paid  must 
be  treated  as  a  part  of  the  trust  estate,  and  that  the  trustee 

1  Burgess  v.  Wheate,  1  Ed.  226;  Docker  v.  Somes,  2  Myl.  &  K.  664; 
O'Herlihy  v.  Hedges,  1  Sch.  &  Lef.  126;  Bently  v.  Craven,  18  Beav.  75; 
Gubbins  v.  Creed,  2  Sch.  &  Lef.  218;  Ex  parte  Andrews,  2  Rose,  412; 
Hamilton  v.  Wright,  9  CI.  &  Fin.  Ill;  Middleton  v.  Spicer,  1  Bro.  Ch. 
20.5;  Sherrard  v.  Harborough,  Amb.  16.5;  Re  Shrewsbury  School,  1  Myl. 
&  Cr.  647;  Martin  v.  Martin,  12  Sim.  579;  Cooke  v.  Cholraondeley,  3 
Drew.  1;  Hawkins  v.  Chappcll,  1  Atk.  621;  Johnson  v.  Baber,  22  Beav. 
562;  6  De  G.,  M.  &  G.  430;  Parshall's  App.,  65  Pa.  St.  2:«;  Ellis  v. 
Barker,  L.  R.  7  Ch.  104;  Sloo  v.  Law,  3  Blatch.  C.  C.  457;  Williams  v. 
Stevens,  L.  R.  1  P.  C.  352. 

2  Webb  V.  Shaftesbury,  7  Yes.  480;  Hutchinson  v.  Morritt.  3  Y  &  C.  47. 

539 


§  428.]  GENERAL   DUTIES   OF   TRUSTEES.  [CHAP.  XIV. 

must  account  for  it,  as  he  could  make  no  profit,  directly  or 
indirectly,  from  the  trust  property  or  from  the  position  or 
office  of  trustees.^  If  a  trustee  joins  in  betraying  the  trust 
for  private  gain,  he  will  have  to  bear  any  loss  that  may  fall 
on  him  by  the  dishonesty  of  his  confederates.  The  law  will 
not  aid  him  against  them.  It  will  not  unravel  a  tangled  web 
of  fraud  for  the  benefit  of  one  through  whose  agency  the  web 
was  woven  and  who  has  himself  become  enmeshed  therein. ^ 
Trustees  may  be  enjoined  from  carrying  out  a  contract  made 
for  their  own  benefit.^  But  where  one  holds  a  trust  for  the 
support  of  another,  the  trustee  may  supply  goods  from  his 
store  at  a  fair  price.  This  is  not  dealing  with  the  trust  for 
his  private  gain.* 

§  428.  A  trustee,  executor,  or  assignee  cannot  buy  up 
a  debt  or  incumbrance  to  which  the  trust  estate  is  liable,  for 
less  than  is  actually  due  thereon,  and  make  a  profit  to  him- 
self; but  such  purchase  inures  for  the  benefit  of  the  trust 
estate,  and  the  creditors,  legatees,  and  cestuis  que  trust  shall 
have  all  the  advantage  of  such  purchase.^  But  if  a  trustee 
buys  up  an  outstanding  debt  for  the  benefit  of  the  cestuis  que 
trust,  and  they  refuse  to  take  it  or  to  pay  the  purchase-money, 
they  cannot  afterwards,  when  the  purchase  turns  out  to  be 
beneficial,  claim  the  benefit  for  themselves.^  Nor  can  the 
trustee  make  any  contract  with  the  cestui  que  trust  for  any 
benefit,  or  for  the  trust  property,  nor  can  he  accept  a  gift 

1  Sugderi  v.  Crossland,  3  Sm.  &  Gif.  192. 

2  Farley  v.  St,  Paul  M.  &  M.  Rd.  4  McCiary  (U.  S.),  142. 

3  Sloo  V.  Law,  3  Blatch.  C.  C.  457. 

4  Cogbill  V.  Boyd,  77  Va.  450. 

5  Robinson  i'.  Pett,  3  P.  Wms.  251,  n.  (a);  Pooley  v.  Quilter,  4  Drew. 
181;  2  De  G.  &  J.  327;  Morret  v.  Paske,  2  Atk.  54;  Dunch  v.  Kent,  1 
Vein.  241;  Darcy  v.  Hall,  Id.  49;  Ex  parte  Lacey,  6  Ves.  628;  Anon.  1 
Salk.  155;  Fosbrooke  v.  Balguy,  1  Myl.  &  K.  226;  Carter  v.  Home,  1  Eq. 
Ca.  Ab.  7;  Schoonmaker  v.  Van  Wyke,  31  Barb.  457;  Matter  of  Oakley, 
2  Edw.  478;  Herr's  Est.,  1  Grant's  Ca.  272;  Quackenbush  v.  Leonard,  9 
Paige,  334;  Slade  v.  Van  Vechten,  11  Paige,  21;  Barksdale  v.  Fiuuey,  14 
Grat.  338;  King  v.  Cushmars,  41  111.  31. 

®  Barwell  v.  Barwell,  31  Beav.  371. 

540 


CHAP.  XIV.]  TRUSTEES   CAN   MAKE   NO    PROFIT.  [§  429. 

from  the  cestui  que  trust}  The  better  opinion,  however,  is, 
that  a  trustee  may  purchase  of  the  cestui  que  trusty  or  accept 
a  benefit  from  him,  but  the  transaction  must  be  beyond  sus- 
picion ;  and  the  burden  is  on  the  trustee  to  vindicate  the 
bargain  or  gift  from  any  shadow  of  suspicion,  and  to  show 
that  it  was  perfectly  fair  and  reasonable  in  every  respect, 
and  courts  will  scrutinize  the  transaction  with  great  severity .^ 
So,  if  a  trustee  buys  the  trust  property  at  private  sale  or 
public  auction,  he  takes  it  subject  to  the  right  of  the  cestui 
que  trust  to  have  the  sale  set  aside,  or  to  claim  all  the  benefits 
and  profits  of  the  sale  for  himself.^ 

§  429.  Trustees  cannot  make  a  profit  from  the  trust  funds 
committed  to  them,  by  using  the  money  in  any  kind  of  trade 
or  speculation,  nor  in  their  own  business ;  nor  can  they  put 
the  funds  into  the  trade  or  business  of  another,  under  a  stipu- 
lation that  they  shall  receive  a  bonus  or  other  profit  or  advan- 
tage. In  all  such  cases,  the  trustees  must  account  for  every 
dollar  received  from  the  use  of  the  trust  money,  and  they  will 
be  absolutely  responsible  for  it  if  it  is  lost  in  any  such  trans- 
actions.    By  this  rule,  trustees  may  be  liable  to  great  losses 

1  Vaughton  v.  Noble,  30  Beav.  34;  Baxter  v.  Costin,  1  Busb.  Eq.  262; 
Andrews  v.  Hobson,  23  Ala.  219;  Mason  v.  Martin,  4  Md.  124;  Green  v 
Winter,  1  Johns.  Ch.  26;  Spindler  v.  Atkinson,  3  Md.  409;  Wiswall  v. 
Stewart,  3  Ala.  433. 

2  Ex  parte  Lacey,  6  Ves.  626;  Scott  v.  Davis,  1  Myl.  &  Cr.  87;  Coles 
V.  Trecothick,  9  Ves.  234;  Morse  v.  Royal,  12  Ves.  372;  Dunlop  r. 
Mitchell,  10  Ohio,  17;  Harrington  v.  Brown,  5  Pick.  519  ;  Bolton  v. 
Gardner,  3  Paige,  273 ;  Ames  v.  Downing,  1  Bradf.  321  ;  Lyon  v.  Lyon,  8 
Ired.  Eq.  201 ;  Pennock's  App.,  14  Pa.  St.  446  ;  Bruch  v.  Lantz,  2  Rawle, 
392;  Stuart  v.  Kissam,  2  Barb.  493;  Jones  v.  Smith,  33  Miss.  215;  Soller 
V.  Chandler,  26  Miss.  154;  Heme  v.  Meeres,  1  Vern.  465;  Smith  v.  Isaac, 
12  Mo.  106;  ante,  §  195. 

3  Beeson  v.  Beeson,  9  Barr,  279;  Patton  v.  Thompson,  2  Jones,  Eq. 
285;  Mason  v.  Martin,  4  Md.  124;  Spindler  v.  Atkinson,  3  Md.  409; 
Davoue  v.  Fanning,  2  Johns.  Ch.  252;  Iddings  v.  Bruer,  4  Sandf.  Ch. 
222;  Hendricks  v.  Robinson,  2  Johns.  Ch.  283;  Evertson  v.  Tappan,  5 
Johns.  Ch.  497;  Smith  v.  Lansing,  22  N.  Y.  530;  Ames  v.  Downing,  1 
Bradf.  321  ;  Andrews  v.  Hobson,  23  Ala.  219;  Charles  v.  Dubois,  29  Ala. 
367;  Wiswall  v.  Stewart,  32  Ala.  433;  Bellamy  i'.  Bellamy,  6  Fla.  62; 
Schoonmaker  v.  Van  Wyke,  31  Barb.  457. 

541 


§  430,]  GENERAL   DUTIES   OF   TRUSTEES.  [CHAP,  XIV. 

while  the  J  can  receive  no  profit ;  and  the  rule  is  made  thus 
stringent,  that  trustees  may  not  be  tempted  from  selfish  mo- 
tives to  embark  the  trust  fund  upon  the  chances  of  trade  and 
speculation.^  If  a  trustee  charge  a  bonus  in  his  account  for 
his  skill  and  services  in  conducting  the  business  of  the  trust, 
it  will  be  set  aside.^ 

§  430.  All  persons  who  stand  in  a  fiduciary  relation  to 
others  must  account  for  all  the  profits  made  upon  moneys  in 
their  hands  by  reason  of  such  relation.^  Thus  partners  stand 
in  a  fiduciary  relation  to  each  other,  and  if  a  partner,  instead 
of  winding  up  the  partnership  affairs,  when  for  any  reason  he 
ought  to  do  so,  continues  to  use  the  partnership  property  in 
business,  and  makes  a  profit  thereon,  he  must  account  for  it.* 
But  in  making  up  the  accounts,  courts  will  make  a  just  allow- 
ance for  time,  skill,  and  other  elements  of  success  in  conduct- 
ing the  business.^  If  a  trader  has  trust  funds  in  his  hands, 
not  in  a  fiduciary  character,  but  through  a  breach  of  trust  by 
a  trustee,  he  is  liable  only  for  interest.^     Agents,  guardians, 

'  Docker  v.  Somes,  2  Myl.  &  K.  664;  Willett  v.  Blanford,  1  Hare,  253; 
Cummins  v.  Cummins,  6  Ir.  Eq.  723  ;  Wedderburn  v.  Wedderburn,  2 
Keen,  722;  4  Myl.  &  Cr.  41;  22  Beav.  84;  Townend  v.  Townend,  1  Gif. 
201;  Parker  v.  Bloxara,  20  Beav.  295;  Manning  v.  Manning,  1  Johns.  Ch. 
527;  In  re  Thorp,  Davies,  290;  Brown  v.  Ricketts,  4  Johns.  Ch.  303; 
William  r.  Stevens,  L.  R.  1  P.  C  352;  Blauvelt  v.  Ackerman,  5  C.  E. 
Green,  141;  Darling  v.  Hammer,  Id.  220;  Pluman  v.  Slocum,  41  N.  Y. 
53;  Frank's  App.,  5  Pa.  St.  190. 

2  Barrett  v.  Hartly,  L.  R.  2  Eq.  789. 

8  Hawley  v.  Cramer,  4  Cow.  717 ;  Richard.son  v.  Spencer,  18  B.  Mon. 
4.50,  Thorp  v.  McCullum,  1  Gil.  (111.)  615;  Van  Epps  v.  Van  Epps,  9 
Paige,  237 ;  Ackerman  v.  Emot,  4  Barb.  626. 

*  Bentley  v.  Craven,  18  Beav.  75;  Parsons  v.  Hayward,  31  Beav.  199; 
Crawshay  v.  Collins,  15  Ves.  226;  Brown  v.  De  Tastet,  Jac.  284;  Wed- 
derburn V.  Wedderburn,  2  Keen,  722;  4  INlyl.  &  Cr.  41 ;  22  Beav.  84.  A 
partner  who  receives  the  partnership  property  on  a  resale  from  the  pur- 
chaser at  public  auction,  by  a  secret  arrangement  between  them,  is  bound 
to  account  as  if  no  sale  had  been  made,  although  his  copartner  was  a 
bidder  at  the  auction  sale.     Jones  v.  Dexter,  130  Mass.  380. 

6  Docker  v.  Somes,  2  Myl.  &  K.  662;  Willett  i'.  Blanford,  1  Hare,  253; 
Brown  ii.  De  Tastet,  Jac.  284. 

^  Strowd  V.  Gwyer,  28  Beav.  130;  Townend  v.  Townend,  1  Gif.  210; 

542 


CHAP.  XIV.]  TRUSTEES   CAN   MAKE   NO   PROFIT.  [§  431. 

directors  of  corporations,  officers  of  municipal  corporations, 
and  all  other  persons  clothed  with  a  fiduciary  character,  are 
subject  to  this  rule.^ 

§  431.  So  if  persons,  standing  in  such  a  relation  to  an 
estate,  obtain  advantages  in  respect  to  it,  those  who  succeed 
to  the  estate  shall  have  the  advantages  which  are  thus 
obtained.^  As  where  a  mortgagee  had  purchased  the  right  of 
dower  of  the  widow  of  a  deceased  mortgagor,  the  heir  of  the 
mortgagor,  upon  a  bill  to  redeem,  was  held  to  have  the  right 
to  take  the  purchase  of  the  dower  at  the  price  which  the  mort- 
gagee had  paid.^  So  an  heir  cannot  hold  an  incumbrance  for 
more  than  he  gave  for  it,  against  the  creditors  of  the  ances- 
tor's estate,*  and  it  is  conceived  that  the  same  rule  applies  to 
a  devisee.^  But  if  the  heir  or  devisee  is  himself  an  incum- 
brancer at  the  death  of  the  ancestor,  he  may  buy  in  a  prior, 
but  not  a  subsequent,  incumbrance,  and  hold  it  for  the  whole 
amount  due.  The  court  considers  him,  in  buying  such  a 
prior  incumbrance,  not  as  heir  or  devisee,  but  as  an  incum- 
brancer or  stranger ;  and  so  if,  as  such  prior  incumbrancer, 
he  obtains  a  prior  incumbrance  by  the  bounty  or  gift  of 
another,  he  shall  hold  such  bounty  or  gift  for  the  benefit  of 
his  own  incumbrance,  and  there  is  no  reason  why  he  should 
hold  it  for  the  benefit  of  the  creditors  of  the  ancestor.*^     So 

Simpson  v.  Chapman,  4  De  G.,  M.  &  G.  154;  Macdonald  v.  Richardson, 
1  Gif.  81;  Brown  v.  De  Tastet,  Jac.  284;  Chambers  v.  Howell,  11  Beav. 
6  ;  Ex  parte  Watson,  2  V.  &  B.  414. 

1  Morret  v.  Paske,  2  Atk.  52;  Powell  v.  Glover,  3  P.  Wms.  251 ;  Great 
Luxembourg  Railway  Co.  v.  Magnay,  23  Beav.  640;  25  Beav.  586;  Chap- 
lin V.  Young,  33  Beav.  414;  Bowes  v.  Toronto,  11  Moore,  P.  C.  C  463; 
Docker  v.  Somes,  2  Myl.  &  K.  665. 

2  Baldwin  v.  Bannister,  cited  3  P.  Wms.  251;  Dobson  v.  Land,  8  Hare, 
220;  Arnold  v.  Garner,  2  Phill,  231;  Mathison  v.  Clarke,  3  Drew.  3. 

8  Ibid. 

*  Lancaster  v.  Evors,  10  Beav.  154;  1  Phill.  354;  Morret  v.  Paske,  2 
Atk.  54;  Long  ».  Clopton,  1  Vern.  464;  Brathwaite  v.  Brathwaite,  Id. 
334;  Darcy  u.  Hall,  Id.  49, 

6  Long  V.  Clopton,  1  Vern.  464;  Davis  v.  Barrett,  14  Beav.  542. 

«  Davis  V.  Barrett,  14  Beav.  542;  Darcy  v.  Hall,  1  Vern.  49;  Anon.  1 
Salk.  155. 

543 


§  432.]  GENERAL    DUTIES    OF    TRUSTEES.  [CHAP.  XIV. 

the  heir  or  devisee  may  hold  a  prior  incumbrance  for  full  value, 
though  bought  for  less,  against  a  subsequent  incumbrancer.^ 
So,  if  one  of  several  joint  purchasers  of  an  estate  buy  in  an 
incumbrance  for  less  than  its  face,  he  shall  hold  it  for  his  co- 
purchasers  at  the  same  price  he  paid.^  And  the  opinion  has 
been  expressed,  that  a  tenant  for  life  holds  the  same  relation 
toward  tlie  remainder-man ;  and  if  such  tenant  buy  in  an  in- 
cumbrance upon  the  estate  for  less  than  its  face,  he  cannot 
claim  from  the  remainder-man  more  than  he  gave.^ 

§  432.  The  rule  that  trustees  can  make  no  profit  out  of  the 
estate  is  carried  so  far  in  England  that  they  can  receive  no 
compensation  for  their  services.  In  the  United  States,  trus- 
tees are  entitled  to  reasonable  compensation.  But  both  in 
England  and  the  United  States,  a  trustee  can  receive  no 
indirect  profit  from  the  estate  by  reason  of  his  connection 
with  it.  Thus  a  trustee  cannot  be  appointed  receiver  with  a 
salary,*  nor  would  he  be  appointed  without  compensation 
except  under  peculiar  circumstances ;  for  it  is  his  duty  to 
superintend  and  watch  over  the  receiver.^  The  same  reasons 
do  not  apply  for  excluding  a  dry  trustee.^  If  trustees  are 
factors,''  or  brokers,^  or  commission  agents,^  or  auctioneers,^^ 
or  bankers,!^  or  attorneys,  or  solicitors,^^  they  can  make  no 

^  Davis  V.  Barrett,  14  Beav.  542. 

2  Carter  v.  Home,  1  Eq.  Ca.  Ab.  7. 

8  Hill  V.  Brown,  Dr.  433. 

*  Sutton  V.  Jones,  15  Ves.  584;  Morison  v.  Morison,  4  Myl.  &  Cr.  215; 

Sykes  v.  Hastings,  11  Ves.  363,  v.  JoUand,  8  Ves.  72 ;  Anon.  3  Ves. 

51.5. 

6  Sykes  v.  Hastings,  11  Ves.  363. 

®  Sutton  V.  Jones,  15  Ves.  587. 

''  Scattergood  v.  Harrison,  Mos.  128. 

8  Arnold  v.  Garner,  2  Phill.  231. 

9  Sheriff  v.  Aske,  4  Russ.  33. 

10  Mathison  v.  Clarke,  3  Drew.  3,  Kirkman  v.  Booth,  11  Beav.  273. 
"  Crosskill  v.  Bower,  1  Dr.  &  Sm.  319. 

12  Pollard  V.  Doyle,  1  Dr.  &  Sm.  319;  Moore  v.  Frowd,  3  Myl.  &  Cr.  46; 

Frazer  v.  Palmer,  4  Y.  &  C.  515;  York  v.  Brown,  1  Col.  C.   C.  260; 

Broughton  v.  Broughton,  5  De  G.,  M.  &  G.  160;  //;  re  Sherwood,  3  Beav. 

338;  Douglass  v.  Archbutt,  2  De  G.  &  J.  148 ;  Harbin  v.  Darby,  28  Beav. 

544 


CHAP.  XIV.]  TRUSTEES   CAN   MAKE   NO   PROFIT.  [§  433. 

charges  against  the  trust  estate  for  services  rendered  by  them 
in  their  professional  capacity  to  the  estate  of  which  they  are 
trustees.  They  may  employ  the  services  of  such  agents,  if 
necessary,  and  pay  for  them  from  the  estate ;  but  if  they 
undertake  to  act  in  such  capacities  themselves  for  the  estate, 
they  can  receive  no  compensation.  This  rule  is  so  strict,  that 
if  the  trustee  has  a  partner,  and  employs  such  partner,  no 
charge  can  be  made  by  the  firm ;  ^  but  if  the  trustee  is  ex- 
cluded from  all  participation  in  the  compensation,  the  partner 
of  the  trustee  may  be  paid  like  any  other  person  for  similar 
services. 2  In  one  case  where  several  trustees  were  made 
defendants,  one  of  them,  being  a  solicitor,  conducted  the 
defence,  and  was  allowed  his  full  costs,  it  not  appearing  that 
the  costs  were  increased  by  such  conduct.'^  This  case  is  put 
upon  the  ground  that  the  services  were  rendered  under  the 
eye  of  the  court,  and  there  could  be  no  danger  of  collusion ; 
but  the  case  is  not  approved  in  England,  and  has  not  been 
followed.*  In  the  United  States,  a  trustee  has  been  refused 
compensation  as  solicitor,  for  professional  services  rendered 
by  himself  for  himself  as  trustee,  on  the  ground  that  no  man 
can  make  a  contract  with  himself.^ 

§  433.  Under  no  circumstances  can  a  trustee  claim  or  set 
up  a  claim  to  the  trust  property  adverse  to  the  cestui  que  trust.^ 

325;  Morgan  v.  Homans,  49  N.  Y.  667;  Gomley  v.  Wood,  9  Ir.  Eq.  418; 
Bmsse  v.  Paige,  1  Keyes,  87;  IN.  Y.  Decis.  138. 

1  Collin  V.  Carey,  2  Beav.  128;  Lincoln  v.  Winsor,  9  Hare,  158;  Chris- 
tophers V.  White,  10  Beav.  523 ;  Lyon  v.  Baker,  5  De  G.  &  Sra.  622 ; 
Manson  v.  Baillie,  2  Macq.  H.  L.  Ca.  80. 

2  Clack  V.  Carlon,  7  Jur.  (n.  s.)  441;  Burge  v.  Burton,  2  Hare, 
373. 

8  Cradock  v.  Piper,  1  McN.  &  G.  664;  1  Hall  &  T.  617,  overruling 
Bainbrigge  v.  Blair,  8  Beav.  588. 

4  Lyon  V.  Baker,  5  De  G.  &  Stn.  622. 

5  Mayer  v.  Galluchet,  6  Rich.  Eq.  2;  Jenkins  v.  Fickling,  4  Des.  470; 
Edmonds  v.  Crenshaw,  Harp.  232. 

«  Att'y-Gen.  v.  Monro,  2  De  G.  &  Sm.  163;  Stone  v.  Godfrey,  5  De  G., 

M.  &  G.  76  ;  Frith  v.  Curtland,  2  Hem.  &  M.  417;  Pomfret  v.  Winsor,  2 

Ves.  476;  Kennedy  v.  Daley,  1   Sch.  &  Lef.  381;  Ex  parte  Andrews,  2 

Rose,  412;  Conry  v.  Caulfield,  2  B.  &  B.  272;  Newsome  v.  Flowers,  30 

VOL.  I.  —  35  545 


§  434.]  GENERAL   DUTIES   OP  TRUSTEES.  [CHAP.  XIV. 

Nor  can  he  deny  his  title.^  If  a  trustee  desires  to  set  up 
a  title  to  the  trust  property  in  himself,  he  should  refuse  to 
accept  the  trust.  But  if  a  claim  is  made  upon  him  by  a  third 
person,  adverse  to  the  cestui  que  trust,  he  may  decline  to 
deliver  over  the  property  to  his  cestui  que  trust  until  the 
title  is  determined,  or  he  is  indemnified  or  secured  against 
the  consequences,^  or  he  may  pay  the  fund  into  court,^  and 
if  he  neglects  to  do  so,  and  thus  makes  a  suit  necessary,  he 
will  recover  only  such  costs  as  he  would  have  been  entitled 
to  if  he  had  paid  the  money  into  court.*  A  trustee  must 
assume  the  validity  of  the  trust  under  which  he  acts,  until 
it  is  actually  impeached,  although  he  may  have  some  sus- 
picion that  there  may  have  been  fraud  or  collusion  in  the 
appointment  and  settlement.^  So,  if  a  trustee  obtains  a 
knowledge  of  facts  that  would  defeat  the  title  of  his  cestui 
que  trust,  and  give  the  property  over  to  another,  he  is  not 
justified  in  morals  in  communicating  such  facts  to  such  other 
person.  His  duty  is  to  manage  the  property  for  his  cestui 
que  trust,  and  not  to  keep  his  conscience,  or  betray  his  title 
or  interests ;  '^  and  he  can  make  no  admissions  prejudicial  to 
the  rights  of  his  cestui  que  trust,''  nor  can  he  use  his  influence 
to  defeat  the  purposes  of  the  trust  as  declared  by  the  creator 
of  it.8 

§  434.  In  England,  a  trustee,  being  in  possession  of  real 
estate  in  trust,  may  profit  from  his  trust  if  the  cestui  que  trust 
dies  without  heirs ;  for,  as  the  trustee  is  tenant  in  possession, 
there  is  no  such  failure  of  a  tenant  as  to  cause  an  escheat ; 
and  the  trustee  thenceforth  holds  the  lands  for  his  own  use, 

Beav.  461;  Shields  v.  Atkins,  3  Atk.  560;  Langley  v.  Fisher,  9  Beav.  90  ; 
Reece  v.  Frye,  1  De  G.  &  Sm.  279  ;  Benjamin  (;.  Gill,  45  Ga.  110. 

^  Von  Hurter  v.  Spevgeman,  2  Green,  Ch.  185. 

2  Neale  v.  Davies,  5  De  G.,  M.  &  G.  258. 

8  Gunnell  v.  Whitear,  L.  R.  10  Eq.  664. 

*  Ibid. ;  Weller  v.  Fitzhugh,  22  L.  T.  (n.  s.)  567. 

6  Beddoes  v.  Pugh,  26  Beav.  407;  Reid  i-.  JMuUins,  48  Mo.  344. 

«  Lewin,  234. 

'  Thomas  v.  Bowman,  30  111.  34;  29  111.  426. 

8  Ellis  V.  Barker,  L.  R.  7  Ch.  104. 
546 


CHAP.  XIV.]  TRUSTEES    CAN    MAKE   NO    PROFIT.  [§  435, 

there  being  no  cestui  que  trust  to  call  him  to  an  account.^ 
This  is  a  benefit  to  the  trustee ;  but  it  arises  rather  from  an 
absence  of  right  in  others,  than  from  an  affirmative  right  in 
himself.  But  if  he  is  not  in  possession,  or  if  he  has  need  of 
the  assistance  of  a  court  of  equity  to  enforce  his  rights,  the 
court  will  not  act ;  ^  though  it  is  said,  that  having  the  legal 
title,  which  a  court  of  law  must  recognize,  he  can  obtain  all 
the  rights  wliich  a  court  of  law  must  give.^  But  if  the  cestui 
que  trust  devise  the  estate  to  another  upon  trusts  that  fail, 
the  trustee  must  pass  over  the  estate  to  the  devisee,  for  the 
reason  that  the  trustee  can  have  no  advantage  from  trusts 
that  so  fail,  and  he  has  no  equity  against  the  devisee  to  keep 
the  estate.* 

§  435.  Upon  this  rule  of  law  in  England,  several  questions 
were  started  in  the  case  of  Burgess  v.  Wheate,^  which  are 
rather  curious  than  practical  in  this  country ;  as,  for  instance, 
if  a  purchaser  should  pay  the  money  in  full  for  land,  and  die 
without  heirs,  before  he  obtained  a  conveyance,  could  the 
vendor  keep  both  land  and  purchase-money  ?  ^  Again,  if  a 
mortgagor  in  fee  should  die  without  heirs,  could  a  mortgagee 
in  fee  keep  the  whole  estate,  for  the  reason  that  there  was  no 
person  having  a  right  to  redeem  ? '  Of  course  the  equity  of 
redemption  would  be  assets  for  the  payment  of  the  debts  of 
the  mortgagor.^  But  if  there  were  no  debts,  could  the  mort- 
gagee keep  a  large  estate  for  a  small  debt  ?  ^     Another  ques- 

1  Burgess  v.  Wheate,  1  Eden,  177,  186,  216,  256;  Taylor  v.  Haygarth, 
14  Sim.  8;  Daval  v.  New  River  Co.,  3  De  G.  &  Sm.  394;  Cox  v.  Parker, 
22  Beav.  168  ;  Barrow  v.  Wadkin,  24  Beav.  9;  Att'y-Gen.  v.  Sands,  Hard. 
496. 

2  Burgess  v.  Wheate,  1  Eden,  212 ;  Onslow  v.  Wallis,  1  McN.  &  G. 
506;  Williams  v.  Lonsdale,  3  Ves.  Jr.  752. 

3  King  V.  Coggan,  6  East,  431;  2  Smith,  417;  King  v.  Wilson,  10  B.  & 
C.  80. 

*  Onslow  V.  Wallis,  1  McN.  &  G.  506;  Jones  v.  Goodchild,  3  P.  Wms. 
33. 

6  1  Eden,  177.  «  jbid.  212.  '  Ibid.  210. 

8  Beale  u.  Symonds,  16  Beav.  406;  Downe  v.  Morris,  3  Hare,  394. 
»  1  Eden,  236,  256. 

547 


§  437  a.]  GENERAL   DUTIES   OF   TRUSTEES.  [CHAP.  XIV. 

tion  was  raised,  whether  a  trust  in  such  cases  might  not 
result  to  the  grantor.^  No  answers  have  been  given  to  these 
questions  by  decided  cases,  and  as  they  were  put  more  than 
a  century  ago,  it  is  not  probable  that  a  case  will  arise  requir- 
ing their  judicial  determination. 

§  436.  In  the  United  States,  if  a  cestui  que  trust  should  die 
without  heirs,  the  trustee  could  not  hold  for  his  own  beneficial 
use ;  but  he  would  hold  for  the  State  as  ultima  hceres  where 
all  other  heirs  fail.^ 

§  437.  Where  a  cestui  que  trust  of  chattel  dies  without 
heirs,  the  trustee  can  take  no  benefit ;  for  the  beneficial  use 
in  such  cliattel  will  go  as  bona  vacantia  to  the  crown  or 
State.  So,  if  the  cestui  que  trust  makes  a  will  and  appoints 
an  executor,  but  makes  no  further  disposition  of  his  person- 
alty, the  executor  will  take  for  the  State ;  for  the  executor 
can  take  no  beneficial  interest  unless  the  will  expressly  gives 
it  to  him.^ 

§  437  aA  Payment  of  a  trust  debt  by  crediting  the  trustee's 
individual  account  is  not  good.^  A  trustee  may  in  good  faith 
compromise  a  doubtful  debt  due  the  trust  estate,  and  a  fraud 
committed  by  him  upon  others  is  admissible  to  show  his  zeal 
for  the  interests  of  the  estate.^  But  a  compromise  of  a  debt 
due  from  the  trust  by  which  an  advantage  is  gained,  as  where 
a  legatee  accepted  $1100  for  a  $3000  legacy,  inures  to  the 
benefit  of  the  trust  estate,  and  the  trustee  cannot  transfer  the 
whole  gain  to  one  of  the  cestuisJ     A  trustee  to  sue  for  and 

1  1  Eden,  185. 

2  McCaw  V.  Galbraith,  7  Rich.  L.  75;  Matthews  v.  Ward,  10  G.  &  J. 
443;  Darrah  v.  McNair,  1  Ashm.  236;  Ringgold  v.  Malott,  1  Harr.  &  John. 
299;  4  Kent,  425;  1  Cruise,  Dig.  448;  Crane  v.  Reeder,  21  Md.  25. 

8  Middleton  v.  Spicer,  1  Bro.  Ch.  201 ;  Taylor  v.  Haygarth,  14  Sim.  8 
Russell  V.  Clowes,  2  Col.  C.  C.  648;  Powell  i-.  Merritt,  1  Sm.  &  Gif.  381 
Crodock  v.  Owen,  2  Sm.  &  Gif.  241;  Read  v.  Steadham,  26  Beav.  495 
Cane  v.  Roberts,  8  Sim.  214. 

4  See  §  815  a,  815  b. 

fi  Maynard  v.  Cleveland,  76  Ga.  52. 

«  Id.  68  et  seq.  ^  Mitchell  v.  Colburn,  61  Md.  244. 

548 


CHAP.  XIV.]  TRUSTEES    CAN    MAKE    NO    PROFIT.  [§  437  J. 

recover  certain  property  may  make  a  fair  and  judicious  com- 
promise by  which  the  title  is  secured  to  the  cestui.^  Church 
trustees  camiot,  by  their  acts,  create  any  lien  on  the  trust 
property  unless  they  have  express  authority  for  so  doing.^  A 
trustee  can  be  held  personally  for  materials  ordered  by  him 
for  the  trust  estate,  and  on  contracts  made  by  him  in  its 
behalf,  unless  there  be  a  special  agreement  to  look  only  to  the 
trust,  and  this  even  though  the  trustee  acted  under  order  of 
the  court,  this  being  merely  a  security  to  the  trustee  that  he 
shall  be  indemnified  out  of  the  trust  funds.^  But  the  mere 
fact  of  want  of  authority  in  a  trustee  to  bind  the  estate  will 
not  make  him  personally  liable  in  cases  of  executory  contract 
where  the  facts  show  that  no  such  liability  was  intended  by 
either  of  the  parties.'*  A  trustee  with  absolute  control  can 
give  a  license  for  his  life  to  a  railway  company  to  use  the 
land  for  a  roadbed.^  A  trustee  cannot  go  beyond  the  purposes 
of  the  trust  deed  and  bind  the  estate.^ 

437  b.  Though  "  trustee "  be  added  to  the  signature  of  a 
note  or  bond  it  may  be  mere  descriptio  personce^  and  the  obli- 
gation individual.'^  And,  on  the  other  hand,  although  the 
signature  of  a  receipt  be  merely  that  of  the  trustee  as  an  in- 
dividual, the  receipt  may  be  really  given  as  trustee  and  bind 
the  cestuis?  A  note,  though  not  signed  as  trustee,  will,  as 
between  the  cestui  and  the  trustee,  be  the  obligation  of  the 
former  if  the  debt  was  properly  incurred  for  its  benefit.^ 

1  Caldwell  v.  Brown,  66  Md.  293. 

2  Trustees  First  M.  E.  Church  v.  Atlanta,  76  Ga.  181. 

3  Gill  V.  Carmine,  55  Md.  339 ;  Hackman  v.  MaGuire,  20  Mo.  App. 
286 ;  People  v.  Abbott,  107  N.  Y.  225 ;  Kedian  v.  Hoyt,  33  Hun,  145. 

*  Michael  v.  Jones,  84  Mo.  578. 

6  Tutt  V.  R.  R.  Co.,  16  S.  C.  365. 

6  Pracht  &  Co.  v.  Lange,  81  Va.  711. 

■^  Cruselle  v.  Chastain,  76  Ga.  840;  Bowen  v.  Penny,  Id.  743. 

8  Thomassen  v.  Van  Wyngaarden,  65  Iowa,  689. 

9  Bushong  V.  Taylor,  82  Mo.  660. 

649 


§  438.]  POSSESSION.  [chap.  XV. 


CHAPTER   XV. 

POSSESSION  —  CUSTODY  —  CONVERSION  —  INVESTMENT  OF  TRUST 
PROPERTY,  AND  INTEREST  THAT  TRUSTEES  MAY  BE  MADE  TO 
PAY. 

§  438.   Duty  of  trustee  to  reduce  the  trust  property  to  possession. 
§  439.  Time  witliiu  which  possession  should  be  obtained. 

§  440.  Diligence  necessary  in  acquiring  possession. 

§  441.    The  care  necessary  in  the  custody  of  trust  property. 
§  442.  In  what  manner  certain  property  should  be  kept. 

§  443.  Where  the  property  maj'  be  deposited. 

§§  444, 445.  How  monej'  must  be  deposited  in  bank. 

§  446.  Within  what  time  trustee  should  wind  up  testator's  establishment. 

§  447.  Trustee  must  not  mix  trust  property  with  his  own. 

§  448.    When  a  trustee  is  to  convert  trust  property. 
§  449.  General  rule  as  to  conversion. 

§  450.  When  a  court  presumes  an  intention  that  property  is  to  be  converted. 

§  451.  When  the  court  presumes  that  the  property  is  to  be  enjoyed  by  cestui 

que  trust  in  specie. 
§  452.    Of  investment. 

§  453.  As  to  investment  in  personal  securities. 

§  454.  As  to  the  employment  of  trust  property  in  trade,  business,  or  speculation. 

§  455.  Rule  as  to  investments  in  England. 

§  456.  Rule  in  the  United  States. 

§§  457, 458.    Rule  as  to  real  securities. 
§  459.  Of  investments  in  the  different  States. 

§§  460,  461.     Construction,  where  the  instruments  of  trust  direct  how  investments 

may  be  made. 
§  462.  Within  what  time  investments  must  be  made. 

§  403.  Trustees  must  not  mingle  their  own  money  in  investments. 

§  464.  Must  not  use  the  trust  money  in  business. 

§  465.  Original  investments  and  investments  left  by  the  testator. 

§  466.  Changing  investments. 

§  467.  Acquiescence  of  cestui  que  trust  in  improper  investments. 

§  468.   Interest  that  trustees  must  pay  upon  trust  funds  for  an^-  dereliction  of  duty. 
§  469.  When  he  is  directed  to  invest  in  a  particular  manner. 

§  470.  When  he  improperly  changes  an  investment. 

§  471.  When  compound  interest  will  be  imposed,  and  when  other  rules  will  be 

applied. 
§  472.  Rule  where  an  accumulation  is  directed. 

§  438.  The  first  duty  of  a  trustee,  after  his  appointment 
and  qualification  to  act,  is  to  secure  the  possession  of  the  trust 
550 


CHAP.  XV.]  COLLECTION.  [§  438. 

property  and  to  protect  it  from  loss  and  injury.  Until  posses- 
sion is  properly  taken  by  the  trustee  the  grantor  is  entitled  to 
the  profits  of  the  estate.^  If  the  trust  property  is  an  equitable 
interest  or  estate,  he  must  give  notice  to  the  holder  of  the 
legal  title ;  and  if  he  cannot  have  the  legal  title  transferred 
to  himself,  he  must  take  such  steps  that  no  incumbrances  can 
be  put  upon  it  by  the  settlor  or  assignor.  If  the  trust  fund 
consists  in  part  of  notes,  bonds,  policies  of  insurance,  and 
other  similar  cJioses  in  action,  notice  should  be  given  to  the 
promisors,  obligors,  or  makers  of  the  instruments.  This  is  the 
general  rule  in  England  and  in  many  of  the  United  States.^ 
In  some  States,  however,  it  is  held  that  an  assignment  of  a 
cliose  in  action  is  complete  in  itself  when  the  assignor  and 
assignee  have  completed  the  transfer,  and  that  notice  to  the 

1  Frayser  v.  Rd.  Co.,  81  Va.  388. 

2  Jacob  V.  Lucas,  1  Beav.  436;  Wright  v.  Dorchester,  3  Russ.  49  n.; 
Timson  v.  Ramsbottom,  2  Keen,  85;  Forster  v.  Blackstone,  1  Myl.  &  K. 
297;  Roofer  v.  Harrison,  2  K.  &  J.  86;  Loveredge  v.  Cooper,  3  Russ.  30; 
Dearie  v.  Hall,  Id.  1;  Meux  v.  Bell,  1  Hare,  73;  Stocks  v.  Dobson,  4 
De  G.,  M.  &  G.  11;  Voyle  v.  Hughes,  2  Sm.  &  Gif.  18;  Ryall  v.  Rowles, 
1  Ves.  348;  1  Atk.  165;  Dow  v.  Dawson,  1  Ves.  331;  3  Lead.  Ca.  Eq. 
612;  Jones  v.  Gibbons,  9  Ves.  410;  Thompson  v.  Spiers,  13  Sim.  469; 
Waldron  v.  Sloper,  1  Drew.  193;  Ex  parte  Boulton,  1  De  G.  &  J.  163; 
Pierce  v.  Brady,  23  Beav.  64;  Martin  v.  Sedgwick,  9  Beav.  333;  Evans 
1-.  Bicknell,  6  Ves.  174  ;  Dunster  v.  Glengall,  3  Ir.  Eq.  47;  Forster  v. 
Cockerell,  9  Bligh  (n.  s.),  332;  3  CI.  &  Fin.  456;  Feltham  v.  Clark,  1 
De  G.  &  Sm.  307;  In  re  Atkinson,  2  De  G.,  M.  &  G.  140;  Mangles  v. 
Dixon,  18  Eng.  L.  &  Eq.  82;  Brashear  v.  West,  7  Pet.  608;  Stewart  v. 
Kirkland,  19  Ala.  162;  Cummings  v.  Fullara,  13  Vt.  134;  Nortliampton 
Bank  v.  Balliet,  8  Watts  &  S.  311 ;  Bean  v.  Simpson,  4  Shep.  49;  Phillips 
V.  Bank  of  Lewistown,  6  Harris,  394;  Laughlin  v.  Fairbanks,  8  Mo.  367; 
Campbell  v.  Day,  16  Vt.  358;  Barney  r.  Douglass,  19  Vt.  98;  Ward  v. 
Morrison,  25  Vt.  593 ;  Loomis  v.  Loomis,  2  Vt.  201 ;  Adams  v.  Leavens, 
20  Conn.  73  ;  Van  Buskirk  r.  Lis.  Co.,  14  Conn.  145;  Foster  v.  Mix,  20 
Conn.  395;  Bishop  v.  Halcomb,  10  Conn.  444;  Woodbridge  v.  Perkins,  3 
Day,  364;  Judah  v.  Judd,  5  Day,  534;  Murdock  v.  Finney,  21  Mo.  138  ; 
Cladfield  v.  Cox,  1  Sneed,  330;  Fishery.  Knox,  13  Pa.  St.  622;  Judson 
r.  Corcoran,  17  How.  614.  But  see  Beavan  v.  Oxford,  6  De  G.,  M.  &  G. 
507  ;  Kekewich  v.  Manning,  1  De  G.,  M.  &  G.  176;  Clack  v.  Holland,  24 
L.  J.  19;  Barr's  Trusts,  4  K.  &  J.  219;  Scott  v.  Hastings,  Id.  633;  Bridge 
V.  Beadon,  L.  R.  3  Eq.  064;  In  re  Brown's  Trusts,  L.  R.  5  Eq.  88;  Lloyd 
V.  Banks,  L.  R.  4  Eq.  222;  3  Ch.  488. 

551 


§  438.]  POSSESSION.  [chap.  XV, 

debtor  is  not  necessary  in  order  to  make  the  assignment  valid 
as  against  third  persons,  or  attaching  creditors,  or  subsequent 
assignees  without  notice.^  But  it  seems  to  be  agreed  in  all 
the  cases,  that,  if  the  debtor  without  notice  and  in  good  faith 
pays  the  debt  to  the  assignor,  it  will  be  a  good  payment,  and 
discharge  him  from  further  liability ;  ^  but  if  he  should  pay 
after  notice  he  would  still  be  liable  to  the  assignee.^  Under 
all  circumstances,  it  is  safer  to  give  notice  to  the  debtor, 
whether  the  courts  of  a  State  hold  notice  necessary  or  not. 
If  the  assignor  receive  the  money  of  the  debtor  after  the 
assignment,  he  will  hold  the  money  in  trust  for  the  assignee.* 
These  general  rules  concerning  notice  do  not  apply  to  equities 
in  real  estate.^  Trustees  should  also  insist  upon  possession  of 
all  the  notes,  bonds,  policies,  and  other  obligations  for  the  pay- 
ment of  money  being  delivered  to  them ;  for  if  negligent  in 
this  respect,  and  suits  and  costs  arise,  they  might  be  made 
responsible  personally.^  So,  if  there  are  debts  or  securities 
already  due  and  payable  to  the  trust  estate,  the  trustees  must 

1  Sharpless  v.  Welch,  4  Dall.  279;  Bholen  v.  Cleveland,  1  Masou,  174; 
Dix  V.  Cobb,  4  Mass.  508;  Wood  v.  Partridge,  11  Mass.  488;  Warren  r. 
Copelin,  4  Met.  594  ;  Littlefield  v.  Smith,  17  Me.  327;  Corser  v.  Craig,  1 
Wash.  C.  C.  24;  United  States  v.  Vaughn,  3  Binn.  304;  Muir  v.  Scheuk, 
3  Hill,  228;  Talbot  v.  Cook,  7  Men.  438;  Maybin  v.  Kirby,  4  Rich.  Eq. 
105;  Stevens  v.  Stevens,  1  Ashm.  590;  Beckwith  v.  Union  Bank,  5  Seld. 
211;  Conway  v.  Cutting,  50  N.  H.  408;  Garland  v.  Harrington,  51  N.  H. 
409. 

2  Reed  v.  Marble,  10  Paige,  509;  Mangles  v.  Dixon,  18  Eng.  L.  &  Eq. 
82 ;  1  Mac.  &  G.  446;  3  H.  L.  Ca.  739,  and  cases  before  cited;  Stocks  v. 
Dobson,  4  De  G.,  M.  &  G.  11. 

2  Brashear  v.  West,  7  Pet.  608,  and  cases  before  cited ;  Judson  v.  Cor- 
coran, 17  How.  614. 

4  Ellis  V.  Amason,  2  Dev.  Eq.  273 ;  Fortesque  v.  Barnett,  3  Myl.  & 
K.  36. 

5  Wilmot  V.  Pike,  5  Hare,  14;  Etty  v.  Bridges,  2  Y.  &  Col.  486;  Ex 
parte  Boulton,  1  De  G.  &  J.  163;  Webster  v.  Webster,  31  Beav.  393; 
Stephens  v.  Venables,  30  Beav.  625;  Barr's  Trusts,  4  K.  &  J.  219;  Van 
Rensalaer  v.  Stafford,  Hopk.  Ch.  569 ;  9  Cow.  316  ;  Poillon  v.  Martin,  1 
Sandf.  Ch.  569. 

«  Forte.sque  y.  Barnett,  3  Myl.  &  K.  36  ;  Meux  v.  Bell,  1  Hare,  82 ; 
Evans  v.   Bicknell,   6  Ves.   174;  Knye  v.   Moore,  1  S.  &  S.  65;  Lloyd  v. 
Banks,  L.  R.  4  Eq.  222 ;  3  Ch.  488. 
552 


CHAP.  XV.]  CUSTODY.  [§  439. 

proceed  to  collect  them.  If  any  loss  happens  to  the  estate 
from  any  delay,  they  would  be  responsible,^  and  they  may 
accept  payment  even  before  the  debts  are  due.^  Where  it  is 
important  for  the  trustees  to  give  notice  of  an  assignment  to 
them,  notice  to  one  of  several  obligors  is  notice  to  all :  so 
notice  to  one  of  several  of  a  society  of  underwriters  is  suffi- 
cient ;  and  if  the  obligors  compose  a  corporation,  there  must 
be  notice  to  the  directors  or  trustees  of  the  corporation.^  So, 
if  notice  to  trustees  is  necessary  in  any  case,  notice  to  one 
is  sufficient.* 

§  439.  There  is  no  fixed  time  within  which  executors  are 
to  get  in  the  choses  in  action  of  the  testator.  They  must  use 
due  diligence ;  and  what  is  due  diligence  depends  upon  the 
existing  facts  in  every  case,  and  a  large  discretion  must  neces- 
sarily be  vested  in  the  executor.^  If  there  is  property  that 
cannot  be  kept  without  great  expense,  it  should  be  sold  forth- 
with. If  the  testator's  establishment  is  expensive,  it  should 
be  broken  up  within  a  reasonable  time ;  and,  under  special 
circumstances,  two  months  were  held  to  be  reasonable.^  If 
there  are  shares  or  stocks  in  corporations,  the  executors  must 
exercise  a  sound  discretion  to  sell  in  the  most  advantageous 
manner,  and  at  the  most  advantageous  time.     In  the  case  of 

1  Caffrey  v.  Darbey,  6  Ves.  488  ;  McGachen  v.  Dew,  15  Beav.  84 ;  Tebbs 
V.  Carpenter,  1  Madd.  298;  Waring  v.  Waring,  3  Ir.  Eq.  335;  Platel  v. 
Craddock,  C.  P.  Coop.  481;  Wiles  v.  Gresham,  2  Drew.  258;  Grove  v. 
Price,  26  Beav.  103 ;  Rowley  v.  Adams,  2  H.  L.  Ca.  725  ;  Macken  v.  Hogan, 
14  Ir.  Eq.  220;  Mucklow  v.  Fuller,  Jac.  198;  Powell  i>.  Evans,  5  Ves. 
839  ;  Lowson  v.  Copeland,  2  Bro.  Ch.  156  ;  Caney  v.  Bond,  6  Beav.  486  ; 
Cross  V.  Petree,  10  B.  Mon.  413  ;  Wolfe  v.  Washburn,  6  Cow.  261 ;  Waring 
V.  Darnall,  10  G.  &  J.  127  ;  Hester  v.  Wilkinson,  6  Humph.  215 ;  Garner 
V.  Moore,  3  Drew.  277;  NefE's  App.,  57  Pa.  St.  91. 

2  Mills  V.  Osborne,  7  Sim.  30. 

*  Timson  v.  Ramsbottom,  2  Keen,  35;  Mcux  v.  Bell,  1  Hare,  88;  Re 
Styan,  1  Phill.  155;  Smith  v.  Smith,  2  Cr.  &  Mee.  31;  Duncan  v.  Cham- 
berlayne,  11  Sim.  123. 

<  Greenhill  v.  Willis,  4  De  G.,  F.  &  J,  147. 

6  Waring  v.  Darnall,  10  G.  &  J.  127 ;  Hughes  v.  Empson,  22  Beav. 
188. 

«  Field  V.  Pecket,  29  Beav.  576. 

553 


§  440.]  CUSTODY.  [chap.  XV. 

some  Crystal  Palace  shares  owned  by  a  testator,  a  sale  within 
a  year  was  held  to  be  the  exercise  of  a  reasonable  discretion, 
although  it  was  claimed  that  they  ought  to  have  been  sold 
within  two  months.^  So,  where  a  large  part  of  an  estate  con- 
sisted of  Mexican  bonds,  which  the  testator  directed  to  be 
converted  "  with  all  convenient  speed,"  it  was  held  that  these 
words  added  nothing  to  the  implied  duty  of  every  executor 
to  convert  such  property  with  all  reasonable  speed ;  that  a 
conversion  in  the  course  of  the  second  year  was  proper  and 
reasonable ;  that  if  executors  were  bound  to  sell  at  once  with- 
out reference  to  the  circumstances,  there  would  often  be  a 
great  sacrifice  of  property,  and  therefore  that  executors  were 
bound  to  exercise  a  reasonable  discretion,  according  to  the 
circumstances  of  each  case.^  But  generally  stock  should  be 
sold  within  the  year  allowed  for  the  settling  of  a  testator's 
estate,  and  a  delay  beyond  this  time  may  render  the  executors 
or  trustees  liable  for  the  loss,  although  they  act  in  good  faith, 
and  although  some  of  the  trustees  became  of  age  only  a  short 
time  before  the  sale.^  If,  however,  it  is  clear  that  the  trustees 
have  a  discretion  to  sell  or  not  according  to  their  judgment, 
the  case  will  be  governed  by  the  intention  and  not  by  the 
general  rule.* 

§  440.  Personal  securities  change  from  day  to  day ;  and  as 
the  death  of  the  testator  puts  an  end  to  his  discretion  in 
regard  to  them,  unless  he  has  exercised  it  in  his  will,  the 
executor  or  trustee  will  become  personally  liable,  if  he  does 
not  get  in  the  money  within  a  reasonable  time.^     He  must 

1  Hughes  V.  Empson,  22  Beav.  138;  Bate  v.  Hooper,  5  De  G.,  M.  &  G. 
338  ;  Wilkinson  v.  Duncan,  26  L.  J.  (n.  s.)  Ch.  495. 

2  Buxton  V.  Buxton,  1  M.  &  C.  80;  Prendergast  v.  Lushington,  5  Hare, 
171 ;  Hester  v.  Wilkinson,  6  Humph.  215;  Waring  v.  Darnall,  10  G.  &  J. 
127. 

3  Sculthorpe  v.  TifEer,  L.  R.  13  Eq.  238 ;  Grayburn  v.  Clarkson,  L.  R. 
3  Ch.  605. 

*  Mackie  v.  Mackie,  5  Hare,  70;  Wrey  v.  Smith,  14  Sim.  202;  Sparling 
V.  Parker,  9  Beav.  524. 

5  Bailey  v.  Young,  4  Y.  &  Col.  Ch.  226;  Will's  App.,  22  Pa.  St.  330 ; 
Mucklow  V.  Fuller,  Jac.  198;  Tebbs  v.  Carpenter,  1  ]\Iadd.  297. 

554 


CHAP.  XV.]  CUSTODY.  [§  440. 

not  allow  the  assets  to  remain  out  on  personal  security ,i 
though  it  was  a  loan  or  investment  by  the  testator  himself.^ 
It  is  not  enough  for  the  executor  to  apply  for  payment  through 
an  attorney  :  he  must  follow  the  collection  actively  by  legal 
proceedings,^  unless  he  can  show  that  such  proceedings  would 
have  been  futile  and  vain.*  An  executor  must  take  the  same 
steps  when  his  coexecutor  is  a  debtor  to  the  estate,  even  if 
the  testator  has  been  in  the  habit  of  depositing  or  lending 
money  to  the  coexecutor  as  to  a  banker.^  Executors  are  not 
justified  in  dealing  with  a  testator's  money  as  he  dealt  with 
it  himself,  nor  may  they  trust  all  the  persons  that  he  trusted. 
Nor  will  a  direction  in  the  will  "  to  call  in  securities  not 
approved  by  them"  excuse  executors  from  not  calling  in 
personal  securities ;  for  such  direction  refers  to  the  different 
kinds  of  securities  sanctioned  by  law  and  the  court,  and  not 
to  all  investments  outside  the  sanctions  of  the  law.^  If  the 
executors  are  to  get  in  the  money  "  whenever  they  think 
proper  and  expedient,"  they  will  be  liable  for  the  fund  if 
they  allow  it  to  remain  uncollected  out  of  kindness  or  regard 

^  Lowson  V.  Copelaud,  2  Bro.  Ch.  156  ;  Caney  v.  Bond,  6  Beav.  486; 
Att'y-Geu.  v.  Higham,  2  Y.  &  Col.  Ch.  634;  Hemphill's  App.,  18  Pa.  St. 
303. 

2  Powell  V.  Evans,  5  Ves.  839  ;  Bullock  v.  Wheatley,  1  Col.  C.  C.  130; 
Tebbs  V.  Carpenter,  1  Madd.  298  ;  Clough  v.  Bond,  3  Myl.  &  Cr.  496 ;  Hemp- 
hill's App.,  18  Pa.  St.  303;  Pray's  App.,  34  Pa.  St.  100;  Barton's  App.,  1 
Pars.  Eq.  24,  is  overruled  ;  Kimball  v.  Reading,  11  Foster,  352.  In  Eng- 
land, bank  stock  must  be  converted.  Mills  v.  Mills,  7  Sim.  509 ;  Howe  v. 
Dartmouth,  7  Ves.  150  ;  Price  v.  Anderson,  15  Sim.  473. 

3  Lowson  V.  Copeland,  2  Bro.  Ch.  156 ;  Horton  v.  Brocklehurst,  29  Beav. 
511;  Paddon  v.  Richardson,  7  De  G.,  M.  &  G.  563 ;  Wolfe  v.  Washburn, 
6  Cow.  261. 

4  Clack  V.  Holland,  19  Beav.  262 ;  Hobday  v.  Peters,  28  Beav.  603; 
Alexander  v.  Alexander,  12  Jr.  Eq.  1  ;  Maitland  v.  Bateman,  16  Sim.  233, 
and  note  ;  Walker  v.  Symonds,  3  Swanst.  71 ;  East  v.  East,  5  Hare,  343  ; 
Ratcliff  V.  Wynch,  17  Beav.  217;  Ball  v.  Ball,  11  Jr.  Eq.  370  ;  Styles  v. 
Guy,  16  Sim.  232;  Billing  v.  Brogden,  38  Ch.  D.  546. 

5  Styles  V.  Guy,  1  Mac.  &  G.  428;  1  Hall  &  Tw.  523  ;  Egbert  v.  Batter, 
21  Beav.  560;  Candler  v.  Tillett,  22  Beav.  257;  Mucklow  v.  Fuller,  Jac. 
198. 

6  Styles  V.  Guy,  1  Mac.  &  G.  428;  Scully  v.  Delany,  2  Ir.  Eq. 
165. 

555 


§  440.]  CUSTODY.  [chap.  XV. 

for  the  tenant  for  life,  and  not  upon  an  impartial  judgment 
for  the  best  interest  of  all  the  parties.^  If  the  outstanding 
debt  is  secured  bj  a  real  mortgage,  it  ought  not  to  be  called 
in,  if  it  is  safe,  until  it  is  wanted  in  the  course  of  the  adminis- 
tration.2  But  pains  should  be  taken  to  ascertain  whether  the 
security  is  safe.^  If  the  mortgage  security  is  not  adequate, 
the  executor  or  trustee  must  insist  upon  payment,  even  where 
the  cestui  que  trust  is  to  consent  to  every  change  of  invest- 
ment, and  he  refuses  to  consent;  for  nothing  will  justify  con- 
duct that  endangers  the  fund.*  But  if  the  fund  is  safe  on  a 
security  sanctioned  by  the  court  and  selected  by  the  testator, 
it  might  be  a  breach  of  trust  to  call  it  in,  and  allow  it  to  re- 
main unproductive,  or  to  invest  it  anew.^  But  if  trustees 
are  ordered  by  the  court  to  call  in  securities,  and  they  neglect 
to  do  so,  they  will  be  liable  for  any  loss  that  occurs.^  So,  if 
trustees  compromise  a  debt  due  from  a  bankrupt  estate,  they 
must  show  that  the  bankrupt  would  have  obtained  his  dis- 
charge, and  that  it  was  impossible  to  get  the  whole  debt, 
or  they  will  be  liable  for  the  loss.'^  If  the  trustee  himself 
owes  the  estate,  he  must  treat  his  indebtedness  as  assets  col- 
lected, and  if  he  becomes  bankrupt,  he  must  prove  the  debt 
against  himself,  or  he  will  be  liable,  even  if  he  gets  his 
discharge.^      But   in   the   United  States   bankrupts  are   not 

1  Luther  v.  Biancoiii,  10  Ir.  Ch.  194. 

2  Orr  V.  Newton,  2  Cox,  274;  Howe  v.  Dartmouth,  7  Ves.  150  ;  Robin- 
son V.  Robinson,  1  De  G.,  M.  &  G.  252. 

3  Ames  V.  Parkinson,  7  Beav.  384. 

^  Harrison  v.  Thexton,  4  Jur.  (n.  s.)  550. 

6  Orr  V.  Newton,  2  Cox,  276. 

6  Davenport  v.  Stafford,  14  Beav.  338. 

'  Wiles  V.  Gresham,  2  Dr.  258;  5  De  G.,  M.  &  G.  770.  Lord  Justice 
Turner  expressed  a  doubt,  whether  the  trustees  should  have  been  charged, 
■without  further  inquiry.     Bacot  v.  Hayward,  5  S.  C.  441. 

8  Orrett  v.  Corser,  21  Beav.  52 ;  Prindle  v.  Holcombe,  45  Conn.  Ill ; 
Ipswich  Manuf.  Co.  v.  Story,  5  Met.  310;  Chenery  v.  Davis,  16  Gray,  89; 
Hazelton  v.  Valentine,  113  Mass.  472;  Pettee  v.  Peppard,  120  Mass.  523. 
The  acceptance  of  the  trust  requires  him  to  treat  an  indebtedness  for 
■which  he  was  previously  responsible  as  assets  collected.  Stevens  i\  Gay- 
lord,  11  Mass.  269;  Ips.  Manuf.  Co.  v.  Story,  18  Pal.  236;  1  Allen,  ssi  ; 
10  Cush.  176;  120  Mass.  523. 
556 


CHAP.  XV.]  CUSTODY.  [§  441. 

discharged  from  any  liabilities   which  they  are  under  in  a 
fiduciary  capacity. 

§  441.  It  was  observed  in  Harden  v.  Parsons,^  that  no  man 
can  require,  or  with  reason  expect,  that  a  trustee  should  man- 
age another's  property  with  the  same  care  and  discretion  as 
his  own.  But  this  is  neither  sound  morality  nor  good  law. 
A  trustee  must  use  the  same  care  for  the  safety  of  the  trust 
fund,  and  for  the  interests  of  the  cestui  que  trusty  that  he  uses 
for  his  own  property  and  interests.^  And  even  this  will  not 
be  sufficient  if  he  is  careless  in  his  own  concerns ;  for  a  trus- 
tee must  in  all  events  use  such  care  as  a  man  of  ordinary 
prudence  uses  in  his  own  business  of  a  similar  nature.^  Thus, 
where  a  trustee  had  X200  of  his  own  money,  and  <£40  of 
trust  money,  in  his  house,  and  he  was  robbed  by  his  servant, 
he  was  not  held  responsible.*  And  where  a  trustee  deposited 
articles  with  his  solicitor,  to  be  passed  over  to  a  party  en- 
titled to  them,  and  the  articles  were  stolen,  the  trustee  was 
not  held  responsible.^  But  if  a  trustee  employs  an  agent, 
and  the  agent  steals  or  appropriates  the  property  intrusted 
to  him,  the  trustee  will  be  held  responsible  ;  that  is,  the  trus- 
tee is  not  responsible  for  the  crimes  of  strangers,  but  he  is 
responsible  for  the  criminal  acts  of  agents  employed  by  him- 
self about  the  trust  fund,^  and  for  any  loss  that  may  fall  upon 
the  estate  by  the  forgery  of  a  signature  upon  which  he  pays 
money  .'^ 

1  1  Eden,  148. 

2  Morley  v.  Morley,  2  Ch.  Ca.  2;  Jones  v.  Lewis,  2  Ves.  241 ;  Massey 
V.  Banner,  1  J.  &  W.  247;  Att'y-Gen.  v.  Dixie,  13  Ves.  534;  Ex  parte 
Belchier,  Arab.  220;  Ex  parte  Griffin,  2  G.  &  J.  114 ;  Taylor  v.  Benham, 
5  How.  233  ;  King  v.  Talbott,  50  Barb.  453;  40  N.  Y.  86;  Miller  v.  Proc- 
tor, 20  Ohio  St.  444  ;  NefE's  App.,  57  Pa.  St.  91 ;  King  v.  King,  37  Ga. 
205 ;  Campbell  v.  Campbell,  38  Ga.  304 ;  Roosevelt  v.  Roosevelt,  6  Abb. 
(N.  y.)  N.  Cases,  447;  Gould  v.  Chappell,  42  Md.  466;  Carpenter  v.  Car- 
penter, 12  R.  I.  544;  Davis,  Com'r,  v.  Harmon,  21  Grat.  194. 

8  Woodruff  V.  Snedecor,  68  Ala.  442. 
*  Morley  v.  Morley,  2  Ch.  Ca.  2. 

6  Jones  V.  Lewis,  2  Ves.  240 ;  Foster  v.  Davis,  46  Mo.  268. 
«  Bostock  V.  Floyer,  L.  R.  1   Eq.  28;   Hapgood  v.  Perkins,  L.  R.  11 
Eq,  74.  '  Eaves  v.  Hickson,  30  Beav.  136. 

557 


§  443.]  CUSTODY.  [chap.  XV. 

§  442.  Several  trustees,  residing  in  different  places,  cannot 
all  have  the  custody  of  the  same  articles ;  therefore  it  is  said 
that  articles  of  plate,  which  pass  by  delivery,  and  stocks  and 
bonds,  payable  to  the  bearer,  with  coupons  to  be  cut  off  for 
tlie  interest,  should  be  deposited  at  a  responsible  banker's.^ 

§  443.  A  trustee  may  deposit  money  temporarily  in  some 
responsible  bank  or  banking-house  ;  ^  and  if  he  acted  in  good 
faith  and  with  discretion,  and  deposited  the  money  to  a  trust 
account,  he  will  not  be  liable  for  its  loss,  as  where  the  bank 
failed  in  consequence  of  war ;  ^  but  he  will  be  liable  for  the 
money  in  case  of  a  failure  of  the  bank,  or  for  its  depreciation, 
if  he  deposits  it  to  his  oivn  credit,  and  not  to  the  separate 
account  of  the  trust  estate,*  even  though  he  had  no  other 
funds  in  bank,  and  told  the  officers  at  the  time  of  deposit  that 
the  funds  were  held  by  him  in  trust.^  So  if  he  allows  another 
person  to  draw  upon  the  fund  and  misapply  the  money  ;  ^  so 
if  he  deposits  the  money  in  such  manner  that  it  is  not  under 
his  own  exclusive  control,  as  where  money  is  deposited  in 
bank  so  that  it  cannot  be  drawn  without  the  concurrence  of 
other  persons,  the  trustee  will  be  liable  for  the  failure  of  the 
bank,  on  the  principle  that  it  is  the  duty  of  the  trustee  to 
withdraw  the  money  from  the  bank  upon  the  slightest  indi- 
cation of  danger  or  loss,  and  he  cannot  perform  this  duty 
promptly  if  he  is  clogged  by  the  necessity  of  procuring  the 

1  Mendes  v.  Guedalla,  2  John.  &  H.  259. 

2  Rowth  V.  Howell,  3  Ves.  Jr.  565;  Jones  v.  Lewis,  2  Ves.  241 ;  Adams 
V.  Claxton,  6  Ves.  226 ;  Ex  parte  Belchier,  Arab.  219 ;  Att'y-Gen.  v.  Randall, 
21  Vin.  Ab.  534;  Massey  v.  Banner,  1  J.  &  W.  248;  Horsley  v.  Chaloner, 
2  Ves.  85;  France  v.  Woods,  Taml.  172;  Dorchester  v.  Effingham,  Id. 
279;  Freme  v.  Woods,  Id.  172;  Wilks  v.  Groome,  3  Dr.  584;  Johnston  v. 
Newton,  11  Hare,  160;  Swinfen  v.  Swinfen,  29  Beav.  211. 

3  Douglas  V.  Stephenson's  Ex'r,  75  Va.  749. 

*  Wrenr.  Kirton,  11  Ves.  377;  Fletcher  i;.  Walker,  3  Madd.  73;  Mac- 
donnell  v.  Harding,  7  Sim.  178;  Mathews  v.  Brise,  6  Beav  239;  Massey 
V.  Banner,  1  J.  &  W.  241 ;  see  remarks  on  this  case  in  Pennell  v.  Deffell, 
4  De  G.,  M.  &  G.  386,  392;  School  Dis.  Greenfield  v.  First  National  Bank, 
102  Mass.  174  ;  Mason  v.  Whitehorn,  2  Cold.  242. 

fi  William's  Adm'r  v.  Williams,  55  Wis.  300. 

6  Ingle  V.  Partridge,  32  Reav.  661;  34  Beav.  411. 
558 


CHAP.  XV.]  CUSTODY.  [§  444. 

concurrent  action  of  other  persons.^  So  he  will  be  liable  if 
he  keeps  money  in  bank  an  unreasonable  length  of  time,  or 
where  it  is  his  duty  to  invest  the  fund  in  safe  securities,^  or 
to  pay  it  over  to  newly  appointed  trustees,^  or  into  court ;  * 
or  if,  having  no  occasion  to  keep  a  balance  on  hand  for  the 
purposes  of  the  trust,  he  lends  the  money  to  the  bank  on 
interest  upon  personal  security,  that  being  a  security  not 
sanctioned  by  the  court.^ 

§  444.  Trustees  may  leave  money  in  the  custody  of  third 
persons  when  it  is  necessary  in  the  course  of  business,  as 
where  money  is  left  in  the  hands  of  an  auctioneer  as  agent  of 
both  parties  on  a  sale  or  purchase  ;  ^  and  during  the  negotia- 
tion of  an  investment,  the  trustees  may  buy  exchequer  bills  ;^ 
but  if  they  leave  the  exchequer  bills  undistinguished  in  the 
hands  of  a  banker  or  broker,  they  will  be  liable  for  the  loss 
of  the  money .^  But  if  trustees  deposit  money  in  bank  to 
their  own  credit ;  ^  or  if  they  leave  it  for  an  unreasonable 
time,  as  a  year  after  the  testator's  death  and  after  all  debts 
and  legacies  are  paid ;  ^^  or  if  they  place  their  papers  and  re- 
ceipts in  the  hands  of  their  solicitor,  so  that  he  can  receive 
their  money  and  misapply  it ;  ^^  or  if  the  money  is  so  paid  into 
bank  that  it  may  be  drawn  out  upon  the  check  of  one  trustee 
and  misapplied  ;  ^^  or  if  they  neglect  to  sell  property  when  it 

1  Salway  v.  Salway,  alias  White  v.  Baugh,  2  R.  &  M.  215  ;  9  Bligh,  181; 
3  CI.  &  Fin.  44;  overruliug  same  case,  4  Russ.  60. 

2  Moyle  V.  Moyle,  2  R.  &  M.  710 ;  Johnston  v.  Newton,  11  Hare,  169. 
8  Lunham  v.  Blundell,  4  Jur.  (n.  8.)  3. 

*  Wilkinson  v.  Bewick,  4  Jur.  (n.  s.)  1010. 
^  Darke  v.  Martyn,  1  Beav.  525. 
6  Edmonds  v.  Peake,  7  Beav.  239. 
■^  Mathews  v.  Brise,  6  Beav.  239. 

8  Ibid. 

9  Massey  r.  Banner,  1  J.  &  W.  241;  Wren  v.  Kirton,  11  Ves.  377; 
Mason  v.  Whitehorn,  2  Cold.  242. 

"  Ibid. 

"  Ghost  V.  Waller,  9  Beav.  497 ;  Rowland  v.  Witherden,  3  Mac.  &  G. 
568. 
"  Clough  V.  Bond,  3  Myl.  &  Cr.  490;  Clough  v.  Dixon,  8  Sim.  594. 

559 


§  446.]  CUSTODY.  [chap.  XV. 

ought  to  have  been  sold,^  or  suffer  money  to  remain  upon 
personal  security,^  or  upon  an  unauthorized  security ;  ^  or  if 
the  money  is  left  improperly  or  unadvisedly  in  the  hands  of 
a  coexecutor  or  cotrustee,  so  that  lie  has  an  opportunity  to 
misapply  it,  —  all  the  trustees  will  be  responsible  for  any  loss 
that  may  occur  to  the  trust  fund.*  So  trustees  are  liable  for 
the  attorneys  and  solicitors  whom  they  employ;  as  where 
they  employ  a  solicitor  to  examine  the  title  to  a  proposed 
mortgage,  and  they  are  misled  by  him  in  such  manner  that  a 
loss  occurs  to  the  estate,  they  are  liable  to  make  it  good.^ 

§  445.  In  one  case  it  was  said,  that  an  executor  would  not 
be  liable  if  he  had  placed  money  in  bank  under  the  control 
of  a  coexecutor.  The  money  was  entered  on  joint  account, 
but  the  individual  checks  of  the  coexecutors  could  draw  it 
out.  This  was  held  to  be  the  ordinary  and  reasonable  course 
of  business.^  If,  however,  there  is  any  fraud,  collusion,  or 
wilful  default,  or  gross  neglect,  or  if  the  executor  has  any 
reason  to  interfere,  and  does  not  put  a  stop  to  the  misman- 
agement of  his  coexecutor,  he  will  be  held  liable.'^  The  case 
of  Kilbee  v.  Sneyd,  however,  is  so  doubtful  on  this  point, 
and  contrary  to  authority,  that  it  would  be  unsafe  to  act 
upon  it.^ 

§  446.  Trustees  and  executors  have  a  reasonable  time  to 
wind  up  a  testator's  estate,  and  make  investments ;  and  they 

1  Phillips  V.  Phillips,  Freem.  Ch.  11. 

2  Powell  V.  Evans,  5  Ves.  839  ;  Tebbs  v.  Carpenter,  1  Madd.  290. 

3  Hancom  v.  Allen,  2  Dick.  498  and  n.  ;  Howe  v.  Dartmouth,  7  Ves. 
137. 

*  Langford  v.  Gascoyne,  11  Ves.  333 ;  Shipbrook  v  Hinchinbrook,  Id. 
252;  16  Ves.  478;  Underwood  v.  Stevens,  2  Mer.  712;  Hardy  v.  Metro- 
politan Land  Co.,  L.  R.  7  Ch.  429. 

5  Hapgood  V.  Perkins,  L.  R.  11  Eq.  74;  Bostock  v.  Floyer,  L.  R.  1 
Eq.  26. 

6  Kilbee  v.  Sneyd,  2  Moll.  186. 
T  Ibid.  203,  213. 

8  Clough  V.  Dixon,  8  Sim.  594;  3  Myl.  &  Cr.  490 :  Gibbons  v.  Taylor, 
22  Beav.  344;  Ingle  v.  Partridge,  32  Beav.  6G1  ;  34  Beav.  411. 
560 


CHAP.  XV.]  CONVERSION.  [§  448, 

may,  without  responsibility,  keep  the  money  in  a  reliable 
bank  for  one  year  after  the  death  of  the  testator  ;  *  but  if 
they  draw  the  money  out  of  bank,  and  make  any  irregular 
investment,  or  lend  it  to  another  bank  on  interest,  they  will 
be  responsible  for  the  loss  of  the  money,  even  if  the  will 
directs  that  the  trustees  shall  not  be  responsible  for  losses  by 
a  banker  ;  the  construction  of  such  direction  being  that  the 
trustees  shall  not  be  liable  for  loss  of  money  deposited  with 
a  banker  in  the  ordinary  manner.^ 

§  447.  The  trustee  must  not  mingle  the  trust  fund  with 
his  own.  If  he  does,  the  cestui  que  trust  may  follow  the  trust 
property,  and  claim  every  part  of  the  blended  property  which 
the  trustee  cannot  identify  as  his  own.^ 

§  448.  There  may  be  express  trusts  for  conversion ;  that 
is,  to  sell  the  trust  fund,  as  it  exists  at  the  time  of  the  testa- 
tor's decease,  and  convert  the  same  into  some  other  kind  of 
property  or  investment ;  and  there  may  be  an  express  trust 
to  allow  the  cestuis  que  trust  the  use  and  enjoyment  of  the 
specifio  property  devised.  Both  of  these  forms  of  trust  must 
be  strictly  executed,  and  generally  no  question  arises  upon 
them.  But  a  question  sometimes  arises  from  the  situation 
and  character  of  the  property,  and  the  relations  of  the  cestuis 
que  trust  to  it,  whether  the  trustee  is  to  convert  the  property 
into  another  form,  or  allow  the  cestuis  que  trust  to  enjoy  it 
in  specie  :  that  is,  the  court  is  left  to  infer  or  imply,  from  the 
construction  of  the  instrument,  the  character  of  the  property 
and  the  relations  of  the  cestuis  que  trust,  whether  it  was  the 
intention  of  the  testator  that  the  property  should  be  con- 

1  Johnston  v.  Newton,  11  Hare,  160;  Swinfen  v.  Swinfen,  29  Beav. 
211 ;  Wilks  v.  Groome,  3  Dr.  584. 

2  Rehden  v.  Wesley,  29  Beav.  213. 

8  Lupton  V.  White,  15  Ves.  432,  440;  Chedworth  v.  Edwards,  8  Ves. 
46;  White  v.  Lincoln,  Id.  363;  Fellowes  v.  Mitchell,  1  P.  Wms.  83;  Gray 
V.  Haig,  20  Beav.  219;  Leeds  v.  Amherst,  Id.  239;  Mason  v.  Morley,  34 
Beav.  471,475;  Cook  v.  Addison,  L.  R.  7  Eq.  470;  Morrison  v.  Kinstra, 
55  Miss.  71. 

VOL.  I.  — 36  561 


450.]  CONVERSION.  [chap.  XV. 


verted,  or  whether  the  beneficiaries  should  take  the  use  of 
it  specifically,  according  to  the  terms  in  which  it  is  given. 
All  such  cases  must  be  determined  by  their  own  facts  and 
the  construction  of  the  instrument  under  which  the  trust 
exists.^ 

§  449.  A  court  of  equity  has  authority  to  decree  the  con- 
version of  a  trust  fund  from  personal  to  real  estate,  or  vice 
versa,  where  such  conversion  is  not  contrary  to  the  will  of  the 
donor  expressly  or  impliedly,  and  is  for  the  interest  of  the 
cestui?  The  general  rule  is,  that  where  the  testator  gives  his 
personal  property,  or  the  residue  of  his  personal  property,  or 
the  interest  of  his  personal  property ,3  in  trust,  or  directly  to 
several  persons  in  succession,*  and  the  property  is  of  such  a 
nature  that  it  grows  less  valuable  by  time,  as  where  it  is 
leaseholds  or  annuities,  or  where  the  property  is  wasted  or 
consumed  in  the  use  of  it,  the  court  implies  an  intention 
that  such  property  shall  be  converted  into  a  fixed  and  per- 
manent form,  so  that  the  beneficiaries  may  take  the  use  and 
income  of  it  in  succession.  Accordingly,  in  England,  such 
property  is  converted  into  the  investments  allowed  by  law ; 
and  in  the  United  States  it  must  be  converted  into  safe  in- 
vestments, according  to  the  rules  in  force  in  the  State  where 
the  trust  is  to  be  administered ;  and  if  the  trustees  fail  to  do 
so  in  a  reasonable  time,  they  will  be  guilty  of  a  breach  of 
trust.^ 

§  450.  The  court  presumes  an  intention  that  perishable 
property  shall  be  converted,  where  several  persons  are  to 
enjoy  it  in  succession ;  not  so  much  from  the  actual  fact  of 

1  Hidden  i'.  Hidden,  103  Mass.  59. 

2  Ex  parte  Jordan,  4  Del.  Ch.  615. 

8  Howe  V.  Dartmouth,  7  Ves.  137;  Cranch  v.  Cranch  (cited  Id.  142, 
147);  Litchiield  v.  Baker,  2  Beav.  481;  Crowley  v.  Crowley,  7  Sim.  427, 
Sutherland  v.  Cook,  1  Col.  C.  C.  498;  Johnson  v.  Johnson,  2  Col.  C.  C 
441;  Fearns  /;.  Young,  9  Yes.  549;  Benn  v.  Dixon,  10  Sim.  636;  Oakes  v. 
Strachey,  13  Sim.  414. 

<  House  V.  Way,  12  Jur  959. 

6  Bate  V.  Hooper,  5  De  G.,  M.  &  G.  338;  see  /)a<?^  Chap.  X^^II. 
562 


CHAP.  XV.]  CONVERSION.  [§  450. 

such  an  intention,  as  from  its  being  a  convenient  means  of 
adjusting  the  rights  of  those  who  are  to  enjoy  the  property  in 
succession. 1  This  presumption  is  made,  unless  a  contrary 
intention  is  indicated  upon  the  face  of  the  will.  The  later 
authorities  give  effect  to  slighter  indications  than  the  older 
cases.2  The  object  of  the  rule  is  to  secure  a  fair  adjustment 
of  the  rights  of  all  the  cestuis  que  trust  in  succession ;  for  if 
the  property  would  greatly  depreciate  in  value  in  the  hands  of 
the  first  taker,  the  remainder-man  might  fail  to  receive  the 
benefit  intended  to  be  given  to  him  ;  the  court,  therefore, 
orders  the  perishable  property  to  be  converted  into  a  per- 
manent fund,  unless  a  contrary  intention  is  indicated  in  the 
will.  So,  if  property,  not  liable  to  waste,  but  bearing  a  high 
rate  of  interest,  and  subject  to  great  risks,  is  given  to  one 
person  for  life,  and  to  another  in  remainder,  the  beneficiary 
in  remainder  may  call  for  a  conversion  of  the  stocks  or  bonds 
into  a  less  hazardous  and  more  permanent  investment,  that 
their  interests  may  be  better  protected;^  but, the  court  will  not 
call  in  real  securities  without  directing  an  inquiry  whether  it 
is  necessary  for  the  safety  or  benefit  of  all  parties.*  On  the 
other  hand,  the  court  applies  the  same  principles  to  the  pro- 
tection of  the  first  taker  or  tenant  for  life ;  and  so,  if  there 
are  reversionary  interests  that  may  not  fall  in  and  become 
beneficial  to  the  tenant  for  life,  but  may  come  into  the  pos- 
session of  the  remainder-man,  the  court  may  order  the  rever- 
sions to  be  sold,  and  the  purchase-money  to  be  invested,  so 
that  the  tenant  for  life  may  have  the  income  for  life.^     And 

1  Cape  V.  Bent,  5  Hare,  35 ;  Pickering  v.  Pickering,  4  Myl.  &  Cr.  303; 
Ilinves  v.  Hinves,  2  Hare,  611;  Prendergast  v.  Prendergast,  3  H.  L.  Ca. 
195;  see  Cotton  v.  Cotton,  14  Jur.  950. 

2  Morgan  v.  Morgan,  14  Beav.  82  ;  Craig  v.  Wheeler,  29  L.  J.  Ch. 
374;  Mackie  v.  Mackie,  5  Hare,  77;  Wightwick  v.  Lord,  6  H.  L.  Ca.  217; 
Blann  v.  Bell,  5  De  G.  &  Sm.  658;  2  De  G.,  M.  &  G.  775;  Burton  v. 
Mount,  2  De  G.  &  Sm.  383;  Howe  v.  Howe,  14  Jur.  359;  2  Spence,  Eq. 
Jur.  42,  554. 

8  Thornton  v.  Ellis,  15  Beav.  193;  Blann  v.  Bell,  5  De  G.  &  Sm.  658; 
2  De  G.,  M.  &  G.  775;  Wightwick  v.  Lord,  6  H.  L.  Ca.  217. 
^  Howe  V.  Dartmouth,  7  Ves.  150. 
5  Ibid. ;  Fearns  v.  Young,  9  Ves.  549;  Dimes  v.  Scott,  4  Rus.s.  200. 

563 


§  451.]  CONVERSION.  [chap.  XY. 

if  the  trustees  have  a  discretion  as  to  the  time  of  sale,  which 
the  court  cannot  control,  and  they  sell  when  the  reversion 
falls  in,  the  court  will  give  the  tenant  for  life  the  difference 
between  the  actual  price  for  which  the  reversion  sold,  and  its 
estimated  value  one  year  after  the  testator's  death.^ 

§  451.  On  the  other  hand,  an  intention  may  be  implied 
from  the  form  or  terms  of  the  gift,  that  the  property  is  to  be 
enjoyed  by  the  cestuis  que  trust  in  specie;  as,  if  there  is  a 
specific  gift  of  leaseholds  or  of  stocks,  the  specific  legatee  will 
take  the  rents  and  dividends  of  the  specified  property .^  A 
general  direction  to  pay  rents  to  the  tenant  for  life,  after  the 
mention  of  leaseholds,  is  a  specific  devise ;  ^  but  it  is  still  a 
matter  of  doubt  upon  the  authorities,  whether  such  a  direc- 
tion, unconnected  with  any  mention  of  the  leaseholds,  is  a 
specific  devise  or  not.^  A  mere  direction  to  pay  dividends 
is  not  a  specific  devise  of  the  stocks.^  But  a  bequest  of  the 
"interest,  dividends,  or  income  of  all  moneys  or  stock,  and 
of  all  other  property  yielding  income  at  the  testator's  death," 
has  been  held  to  be  specific,  and  the  trustees  could  not  con- 
vert.^ If  the  devise  is  specific,  the  direction  to  vary  the  secu- 
rities will  not  affect  the  rights  of  a  specific  legatee,  for  such 

1  Wilkinson  v.  Duncan,  23  Beav.  469. 

2  Vincent  v.  jSTewcombe,  Younge,  599 ;  Lord  v.  Godfrey,  4  Madd.  455 ; 
Pickering  v.  Pickering,  4  i\Iyl.  &  Cr.  299;  Hubbard  v.  Young,  10  Beav. 
205;  Harris  v.  Poyner,  1  Dr.  181 ;  Mills  v.  Mills,  7  Sim.  501;  Dunbar  v. 
Woodcock,  10  Leigh,  628;  Harrison  v.  Foster,  9  Ala.  955;  Hale  v.  Burro- 
dale,  1  Eq.  Ca.  Ab.  461  ;  Bracken  v.  Beatty,  1  Rep.  in  Ch.  110 ;  Evans  «. 
Iglehart,  6  G.  &  J.  171 ;  Alcock  i;.  Sloper,  2  Myl.  &  K.  702;  Pickering  v. 
Pickering,  2  Beav.  57. 

3  Blann  v.  Bell,  2  De  G.,  M.  &  G.  775;  Crowe  v.  Crisford,  17  Beav. 
507;  Hood  v.  Clapham,  19  Beav.  90;  Marshall  v.  Brenner,  2  Sm.  &  Gif. 
237;  Elmore's  Trusts,  6  Jur.  (n.  s.)  1325. 

*  Goodenough  v.  Tremamondo,  2  Beav.  512 ;  Hunt  v.  Scott,  1  De  G.  & 
Sm.  219 ;  Wearing  v.  Wearing,  23  Beav.  99  ;  Pickup  r.  Atkinson,  4  Hare, 
624  ;  Craig  v.  Wheeler,  29  L.  J.  Ch.  374;  Vachell  v.  Roberts,  32  Beav.  140; 
Harvey  v.  Hai-vey,  5  Beav.  134;  Att'y-Gen.  v.  Potter,  Id.  164. 

8  Xeville  v.  Fortescue,  16  Sim.  333  ;  Blann  v.  Bell,  2  De  G.,  M.  &  G. 
775  ;  Sutherland  v.  Cook,  1  Col.  C.  C.  503;  Hood  v.  Clapham,  19  Beav.  90. 

6  Boys  V.  Boys,  28  Beav.  436. 
564 


CHAP.  XV.]  INVESTMENT.  [§  452. 

direction  is  only  for  the  protection  of  the  trust  fund.^  A 
debt  due  to  a  testator  is  not  devised  specifically,  although  it 
is  embraced  in  the  residue  of  an  estate  specifically  devised,  as 
it  is  in  no  sense  in  the  nature  of  an  investment,  and  is  there- 
fore to  be  converted.^  And  if  a  testator  use  any  expression 
implying  that  leaseholds  or  stocks  or  other  property  are  not  to 
be  converted,  as  if  he  names  a  time  for  the  sale  of  them,  as  at 
or  after  the  death  of  the  tenant  for  life,  the  trustees  will  have 
no  power  to  convert  the  property  until  the  time  arrives.^  But 
where  a  testator  gave  to  his  wife  the  whole  of  the  interest 
arising  from  his  property,  both  real  and  personal,  during  her 
life,  and  at  her  decease  to  be  disposed  of  as  therein  directed, 
it  was  held  that  the  trustees  must  convert,  as  there  was  no  in- 
dication that  she  should  enjoy  any  of  the  property  in  specie.^ 

§  452.  After  a  trustee  has  reduced  the  trust  fund  to  pos- 
session, and  has  secured  the  proper  custody,  and  after  he  has 
converted  so  much  of  the  property  as  was  necessary  to  sell 
for  money,  his  next  duty  is  to  invest  the  proceeds.  It  is  one 
of  the  most  important  of  the  duties  of  trustees  to  invest  the 
trust  fund  in  such  manner  that  it  shall  be  safe,  and  yield  a 
reasonable  rate  of  income  to  the  cestui  que  trust.     If  there 

1  Lord  V.  Godfrey,  4  Madd.  455;  Llewellyn's  Trusts,  29  Beav.  171; 
Morgan  v.  Morgan,  14  Beav.  72. 

2  Holgate  V.  Jennings,  24  Beav.  630.  There  is  some  doubt  upon  the 
principles  of  this  case. 

3  Collins  V.  Collins,  2  Myl.  &  K.  703;  Vaughan  v.  Buck,  1  Phill.  78  ; 
Lichfield  v.  Baker,  13  Beav.  451  ;  Harris  v.  Poyner,  1  Dr.  180;  Chambers 
V  Chambers,  15  Sim.  190;  Daniel  v.  Warren,  2  Y.  &  Col.  Ch.  290 ;  Rowe 
V.  Rowe,  29  Beav.  276;  Alcock  v.  Sloper,  2  Myl.  &  K.  699  ;  Hind  v.  Selby, 
22  Beav.  373  ;  Bowden  v.  Bowden,  17  Sim.  65  ;  Burton  v.  Mount,  2  De  G. 
&  Sm.  383;  Skirving  v.  Williams,  24  Beav.  275;  Hinves  v.  Hinves,  3  Hare, 
609;  Harvey  v.  Harvey,  5  Beav.  134;  Bethune  ?'.  Kennedy,  1  Myl.  &  Cr. 
114;  Hunt  v.  Scott,  1  De  G.  &  Sm.  219;  Pickering  v.  Pickering,  2  Beav. 
31;  4  Myl.  &  Cr.  289  ;  Prendergast  v.  Prendergast,  3  H.  L.  Ca.  195  ;  Hood 
V.  Clapham,  19  Beav.  90  ;  Neville  v.  Fortescue,  16  Sim.  3;i3;  Howe  v. 
Howe,  14  Jur.  359. 

*  Benn  v.  Dixon,  1  Phill.  76  ;  Thornton  v.  Ellis,  15  Beav.  193 ;  Morgan 
V.  Morgan,  14  Beav.  92;  Blann  v.  Bell,  2  De  G.,  M.  &  G.  775  ;  Hood  o. 
Clapham,  19  Beav.  90  ;  Lichfield  v.  Baker,  13  Beav.  481. 

565 


§  452.]  INVESTMENT.  [CHAP.  XV. 

are  directions  in  the  instrument  of  trust  as  to  the  time,  man- 
ner, and  kind  of  investment,  the  trustees  must  follow  the 
direction  and  power  so  given  them.  The  creator  of  a  trust 
may  specify  the  kind  of  investment,  and  what  security  may  be 
taken,  or  he  may  dispense  with  all  security .^  In  the  absence 
of  such  directions  and  powers,  the  trustees  must  be  governed 
by  the  general  rules  of  the  court,  or  by  the  statutes  and  laws 
of  the  State  in  which  the  trust  is  to  be  executed.  If  there  are 
no  directions  in  the  instrument,  nor  rules  of  court,  nor  statu- 
tory provisions  in  relation  to  investments,  they  must  be  gov- 
erned by  a  sound  discretion  and  good  faith?  They  must  not 
have  speculation  in  view,  but  rather  a  permanent  investment, 
considering  both  the  probable  income  and  the  probable  safety 
of  the  capital.^  A  trustee  should  clearly  indicate  the  invest- 
ments he  makes  on  behalf  of  the  trust.  If  he  invests  appar- 
ently in  his  private  capacity  and  after  loss  claims  it  was  a 
trust  transaction,  he  opens  himself  to  suspicion  of  maladmin- 
istration.^ A  trustee  ought  not  as  a  rule  to  invest  in  second 
mortgages.^  Trustees  ought  to  invest  in  government  or  State 
securities,  or  in  bonds  and  mortgages  on  unincumbered  real 
estate.  The  rule  is  not  inflexible,  but  subject  to  the  higher 
rule  that  the  trustees  are  always  to  employ  such  care  and  dili- 
gence in  the  trust  business  as  careful  men  of  discretion  and 
intelligence  employ  in  their  own  affairs.^  In  Rhode  Island, 
neither  statute  nor  rule  of  court  fixes  any  special  class  of  in- 
vestments for  trust  funds,  and  trustees  are  therefore  only  re- 
quired to  be  prudent,  having  regard  to  the  income  and  the 
permanence  and  safety  of  the  investment.'   Any  loss  occasioned 

1  Denike  v.  Harris,  84  N.  Y.  89. 

2  As  a  general  rule,  investments  by  executors  and  testamentary  trus- 
tees, which  take  the  funds  beyond  the  jurisdiction  of  the  court,  will  not 
be  sustained,  and  the  trustee  makes  such  investments  at  the  peril  of  being 
held  responsible  for  the  safety  of  investment.  This  rule  is  not  inflexible, 
but  the  circumstances  must  be  very  unusual  to  justify  the  exception  to  it. 
Cruistou  V.  Olcott,  84  N.  Y.  339. 

8  Emery  v.  Batchelder,  78  Me.  233.  ^  State  v.  Roeper,  82  Mo.  57. 

6  Com'rs   of  Somerville  v.  Johnson.  3G  N.  J.  Eq.  211:  Tattle  v.  Gil- 
more,  Id.  617.  «  Mills  V.  Hoffman,  2G  Hun,  594. 
^  Peckham  v.  Newton,  15  11.  1.  321. 


CHAP.  XV.]  INVESTMENT.  [§  453. 

by  his  negligence  he  must  bear.^  It  is  the  duty  of  trustees 
having  funds  for  investment  to  keep  them  invested,  and  if  they 
retain  trust  moneys  uninvested  beyond  a  reasonable  time,  six 
months  being  usually  allowed,  they  are  prima  facie  liable  for 
interest.^  Voluntary  investments  must  not  be  made  by  a 
trustee  beyond  the  jurisdiction  of  the  court  having  charge  of 
the  trust,  except  in  case  of  necessity  for  the  saving  of  the 
fund.  If  he  does  so,  the  investment  is  at  his  peril  of  loss.^ 
Where  a  trustee  invested  in  a  confederate  bond  which  perished 
on  his  hands,  he  was  held  not  liable,  having  acted  in  good 
faith  and  with  due  discretion  according  to  the  lights  of  the 
time  of  investing.*  The  test  of  liability  always  is  whether  or 
no  the  trustees  have  acted  as  prudent  men  would  have  acted 
in  the  management  of  their  own  property.^ 

§  453.  There  is  one  rule  that  is  universally  applicable  to 
investments  by  trustees,  and  that  rule  is,  that  trustees  cannot 
invest  trust  moneys  in  personal  securities.  If  trustees  have 
a  discretion  as  to  the  kind  of  investments,  it  is  not  a  sound 
discretion  to  invest  in  personal  securities.^     Lord  Hardwicke 

1  Cogbill  V.  Boyd,  77  Va.  450. 

2  Lent  V.  Howard,  89  N.  Y.  169. 

8  Ormiston  v.  Olcott,  84  N.  Y.  339. 
*  Waller  i-.  Catlett,  83  Va.  200. 

5  Godfrey  v.  Faulkaer,  23  Ch.  D.  483. 

6  Walker  v.  Symonds,  3  Swanst.  62;  Darke  v.  Martyn,  1  Beav.  525; 
Terry  v.  Terry,  Pr.  Ch.  273;  Adye  v.  Feuilleteau,  1  Cox,  24;  Vigrass  v. 
Binfield,  3  Madd.  62;  Harden  v.  Parsons,  1  Eden,  149,  note  (a);  Anon. 
Lofft,  492;  Keble  v.  Thompson,  3  Bro.  Ch.  112;  Wilkes  v.  Steward,  G. 
Coop.  6;  Clough  v.  Bond,  3  Myl.  &  Cr.  496;  Pococki;.  Reddington,  5  Ves. 
799;  Collis  v.  Collis,  2  Sim.  365  ;  Blackwood  v.  Borrowes,  2  Conn.  &  Laws. 
477;  AVatts  v.  Girdleston,  6  Beav.  188  ;  Graves  v.  Strahan,  8  De  G.,  M. 
&  G.  291;  Fowler  v.  Reynal,  3  Mac.  &  G.  500;  Smith  v.  Smith,  4  Johns. 
Ch.  281;  Nyce's  Est.,  5  Watts  &  S.  245;  Swoyer's  App.,  5  Barr,  377; 
Willes's  App.,  22  Pa.  St.  330;  Gray  v.  Fox,  Saxton,  Ch.  259;  Harding  v. 
Earned,  4  Allen,  426  ;  Clark  v.  Garfield,  8  Allen,  427;  Moore  v.  Hamilton, 
4  Fla.  112 ;  Spear  v.  Spear,  9  Rich.  Eq.  184  ;  Barney  v.  Saunders,  16  How. 
545,  516.  But  see  Knowlton  v.  Brady,  17  N.  H.  458.  Taking  notes  for 
a  loan  without  security  is  negligence,  and  renders  the  trustee  responsible 
if  the  debtor  becomes  insolvent.  Judge  of  Probate  v.  Mathes,  00  N.  H. 
4.:jj. 

667 


§  453.]  INVESTMENT.  [CHAP.  XV. 

said,  that  "  a  promissory  note  is  evidence  of  a  debt,  but  no 
security  for  it."  ^  Baron  Hothman  observed,  that  "  lending 
on  personal  credit  for  the  purpose  of  a  larger  interest  was  a 
species  of  gaming."  ^  Lord  Kenyon  said,  that  "  no  rule  was 
better  established  than  that  a  trustee  could-not  lend  on  mere 
personal  security,  and  it  ought  to  he  rung  in  the  ears  of  every 
one  who  acted  in  the  character  of  trustee."  ^  It  makes  no 
difference  that  there  are  several  joint  promisors;*  nor  that 
the  loan  is  to  a  person  to  whom  the  testator  loaned  money  on 
his  personal  promise  ;  ^  nor  will  personal  sureties  justify  the 
loan.^  There  must  be  express  authority  in  the  instrument  of 
trust  to  authorize  a  loan  on  personal  promises.'^  Loose,  general 
expressions,  leaving  the  nature  of  the  investments  to  the  trus- 
tees, will  not  justify  such  loans.^  All  the  terms  and  condi- 
tions of  a  loan,  to  be  made  on  personal  security,  must  be 
strictly  complied  with ;  as,  if  a  loan  is  authorized  to  a  hus- 
band, upon  the  written  consent  of  the  wife,  such  consent 
must  be  had  in  the  required  form  ;  ^  and  a  subsequent  assent 
will  not  save  the  trustees  from  responsibility. ^^  An  author- 
ity to  loan  on  personal  security  will  not  justify  the  trustees 
in  lending  to  one  of  themselves ;  ^^  nor  will  it  justify  them 

^  Walker  v.  Symonds,  3  Swanst.  81,  note  (a),  citing  Ryder  v.  Bickerton. 

2  Adye  v.  Feuilleteau,  1  Cox,  25. 

3  Holmes  v.  Bring,  2  Cox,  1;  Wynne  v.  Warren,  2  Heisk.  118;  Dunn 
V.  Dunn,  1  S,  C.  350.  A  trustee,  investing  in  personal  securities,  con- 
tinues responsible  for  them  after  a  transfer  to  his  successor,  until  they  are 
paid  or  legally  invested.  For  those  that  are  paid  he  is  relieved  from 
responsibility,  although  the  money  may  never  be  received  by  the  trust 
estate.     In  re  Foster's  Will,  15  Hun  (N.  Y.),  387. 

4  Ibid.  ;  Clark  v.  Garfield,  8  Allen,  427. 

5  Styles  V.  Guy,  1  Mac.  &  G.  423. 

«  Watts  V.  Girdleston,  6  Beav.  188. 

T  Forbes  v.  Ross,  2  Bro.  Ch.  430;  2  Cox,  113;  Child  v.  Child,  20 
Beav.  50. 

8  Pocock  V.  Reddington,  5  Ves.  799;  Wilkes  v.  Stewart,  G.  Coop.  6; 
Mills  V.  Osborne,  7  Sim.  30 ;  Wynne  v.  Warren,  2  Heisk.  118. 

8  Cocker  v.  Quayle,  1  R.  &  M.  535 ;  Pickard  v.  Anderson,  L.  R.  13  Eq. 
608;  Forbes  v.  Ross,  2  Bro.  Ch.  430. 

10  Bateman  v.  Davis,  3  Madd.  98. 

"  Forbes  v.  Ross,  2  Bro.  Ch.  430  ;  2  Cox,  113 ; v.  Walker,  5  Russ. 

568 


CHAP.  XV.]  PERSONAL   SECURITIES.  [§  454. 

in  lending  to  a  relation,  for  the  purpose  of  accommodating 
him.^ 

§  454.  So,  in  the  absence  of  express  authority,  the  employ- 
ment of  trust  funds  in  trade  or  speculation,  or  in  a  manufac- 
turing establishment,  will  be  a  gross  breach  of  trust.^  However 
advantageous  such  an  investment  may  appear,  the  trustee  in- 
vesting the  funds  in  such  undertakings  will  be  compelled  to 
make  good  all  losses,  and  to  account  for  and  pay  over  all 
profits.^  The  law  discourages  all  such  use  of  trust  funds,  by 
rendering  it  certain  that  the  trustee  shall  make  no  profit  fi-om 
such  investments,  and  that  he  shall  be  responsible  for  all 
losses.  And  if  a  trustee  stands  by,  and  sees  his  cotrustee 
employ  the  funds  in  that  manner,  he  will  be  equally  liable.^ 
Tlie  same  rule  applies  if  the  trustees  simply  continue  the  trade 
or  business  of  the  testator.^  It  is  their  duty  to  close  up  the 
trade,  withdraw  the  fund,  and  invest  it  in  proper  securities 
at  the  earliest  convenient  moment ;  and  the  same  rule  applies 
although  the  trustees  may  have  been  the  business  agents  or 
partners  of  the  testator.^  Nor  will  a  power  "  to  place  out  at 
interest,  or  other  way  of  improvement,"  authorize  the  employ- 

7;  Stickney  v.  Sewell,  1  Myl.  &  Cr.  814;  Francis  v.  Francis,  5  De  G.,  M. 
&  G.  108;  De  Jarnette  v,  De  Jarnette,  41  Ala.  708. 

^  Ibid.;  Langston  v.  OUivant,  G.  Coop.  33;  Cock  v.  Goodfellow,  10 
Mod.  489 ;  Fitzgerald  v.  Pringle,  2  Moll.  534. 

2  Munch  V.  Cockerell,  5  Myl.  &  Cr.  178;  Kyle  v.  Barnett,  17  Ala.  306; 
Flagg  V.  Ely,  1  Edm.  (N.  Y.)  206;  King  v.  Talbott,  40  N.  Y.  96;  50 
Barb.  453 ;  Tucker  v.  State,  72  Ind.  242.  And  parol  request  by  testator 
to  trustee  to  carry  on  the  business  for  the  benefit  of  his  family  is  inadmis- 
sible to  prove  authority.     Rayues  v.  Raynes,  51  N.  H.  201. 

8  French  v.  Hobson,  9  Ves.  103;  Brown  v.  De  Tastet,  Jac.  284;  Cook 
V.  Collingridge,  Id.  607;  Crawshay  v.  Collins,  15  Ves.  218;  2  Russ.  325; 
Feather.stonhaugh  v.  Fenwick,  17  Ves.  298;  Docker  u.  Somes,  2  Myl.  &  K. 
655;  Wedderburn  v.  Wedderburn,  2  Keen,  722  ;  4  Myl.  &  Cr.  41;  Martin 
V.  Rayborn,  42  Ala.  648. 

*  Booth  V.  Booth,  1  Beav.  125;  Ex  parte  Heaton,  Buck.  386;  Bates  v. 
Underbill,  3  Redf.  (N.  Y.)  365. 

s  Ibid.;  Kirkrnan  v.  Booth,  11  Beav.  273.  In  some  cases,  an  executor 
is  bound  to  complete  the  contracts  of  the  testator.  Collinson  v.  Lister,  20 
Beav.  356. 

«  Wedderburn  v.  Wedderburn,  2  Keen,  722;  4  Myl.  &  Cr.  41. 

569 


§  455. j  INVESTMENT.  [CHAP.  XV. 

meut  of  the  money  in  a  trading  concern.^  In  one  case  the 
direction  was  to  "employ"  the  money,  and  it  was  thought 
that  it  savored  of  trade,  and  might  be  employed  in  that 
manner ;  ^  but  it  would  not  be  safe  for  trustees  to  rely  upon 
that  case  as  an  authority,  even  if  their  trust  instrument  con- 
tains a  similar  direction.  If  the  settlor  authorize  his  trustees 
to  continue  the  fund  in  a  trading  firm,  it  will  be  a  breach  of 
trust,  if  the  trustees  allow  the  fund  to  remain  after  a  change 
in  the  firm,  as  by  the  death  or  withdrawal  of  one  of  the  part- 
ners.^ If  the  trustees  are  directed  to  continue  the  testator's 
trade,  they  can  invest  none  of  his  general  assets  in  the  busi- 
ness. They  are  confined  to  the  fund  already  embarked  in  the 
trade*  If  the  trustees  act  in  good  faith  in  continuing  the 
testator's  business  under  such  directions  in  a  will,  they  will 
not  be  liable  for  any  loss ;  ^  but  they  must  act  in  good  faith 
and  without  collusion  or  interested  motives.  So  trustees  are 
not  bound  to  continue  the  capital  in  such  trade,  and  they 
ought  not  to  do  so  against  their  judgment,^  But  if  all  the 
cestuis  que  trust  are  sui  juris,  and  capable  of  acting  for  them- 
selves, and  they  desire  an  executor,  administrator,  or  trustee 
to  continue  the  business  of  the  testator  a  few  months,  in  order 
to  preserve  it  for  his  son,  and  the  executor  acts  in  accordance 
with  their  request,  and  uses  his  best  skill  and  judgment  in 
the  conduct  of  the  trade,  he  will  be  allowed  for  the  loss  in  his 
accounts.' 

§  455.  In  England,  trustees  cannot  invest  the  trust  fund 
in  the  stock  or  shares  of  any  bank  or  private  or  trading  cor- 
poration ;  for  the  capital  depends  upon  the  management  of 

1  Cock  V.  Goodfellow,  10  Mod.  489. 

2  Dickinson  v.  Player,  C.  P.  Coop.  178  (1837,  1838). 

3  Cummins  v.  Cummins,  3  Jo.  &  Lat.  64;  8  Ir.  Eq.  723. 

4  McNeillev.  Acton,  4  De  G.,  M.  &  G.  563;  17  Jur.  104.  And  the 
court  will  keep  separate  the  trade  property,  and  apply  it  exclusirely  to 
the  purposes  of  the  trade.  Owen  v.  Delamere,  15  Eq.  Cas.  139;  Ex  parte 
Richardson,  3  Madd.  138;  Ex  parte  Garland,  10  Ves.  120. 

8  Paddou  V.  Richardson,  7  De  G.,  M.  &  G.  563. 
6  IMurray  v.  Glasse,  23  L.  J.  Ch.  124. 
''  Poole  V.  Munday,  103  Mass.  174. 

570 


CHAP.  XV.]  BANK   SHARES   AND    CORPORATIONS.  [§  455. 

the  directors,  and  is  subject  to  losses. ^  It  is  apparent,  that 
a  manufacturing  or  trading  corporation  may  lose  its  whole 
capital  in  the  prosecution  of  its  business  strictly  within  the 
terms  of  its  charter.^  Lord  Eldon  said  of  bank  stock,  that 
"  it  is  as  safe,  I  trust  and  believe,  as  any  government  security  ; 
but  it  is  not  government  security,  and  therefore  this  court 
does  not  lay  out  or  leave  property  in  bank  stock,  and  what 
this  court  will  decree  it  expects  from  trustees  and  execu- 
tors." 3  By  Lord  St.  Leonards'  Act,  22  &  23  Vict.  35,  trus- 
tees, not  forbidden  by  the  instrument  of  trust,  are  authorized 
to  invest  in  Bank  of  England  or  Ireland  or  East  India  stock. 
This  act  was  held  not  to  authorize  an  investment  in  these 
stocks  of  trust  funds  settled  before  the  passage  of  the  act.* 
By  23  &  24  Vict.  c.  38,  the  original  act  was  made  retrospec- 
tive, and  the  courts  of  chancery  were  authorized  to  issue 
general  orders,  from  time  to  time,  as  to  the  investment  of 
funds  subject  to  its  jurisdiction,  either  in  three  per  cent  con- 
solidated or  reduced,  or  new  bank  annuities,  or  in  such  other 
stocks,  funds,  or  securities  as  the  court  shall  think  fit ;  and 
trustees,  having  power  to  invest  trust  funds  in  government 
securities,  or  upon  railway  stocks,  funds,  or  securities,  may 
invest  in  the  stocks,  funds,  or  securities  which  may  be  des- 
ignated by  the  general  order  of  the  court.  In  pursuance  of 
the  statute,  a  general  order  was  issued  in  1861,  as  follows : 
"  Cash  under  the  control  of  the  court  may  be  invested  in 
bank  stock.  East  India  stock,  exchequer  bills,  and  £2  10s. 
annuities,  and  upon  freehold  and  copyhold  estates,  respec- 
tively in  England  and  Wales,  as  well  as  in  consolidated  £S 

1  Haynes  v.  Redington,  1  Jo.  &  Lat.  589;  7  Ir.  Eq.  405;  Clough  v. 
Bond,  3  My\.  &  Cr.  496 ;  Powell  v.  Cleaver,  7  Ves.  142,  n. 

2  Trafford  v.  Boehm,  3  Atk.  440 ;  Mills  v.  Mills,  7  Sim.  501 ;  Hancom 
V.  Allen,  2  Dick.  499,  n.  ;  7  Bro.  P.  C.  375;  Emelie  v.  Emelie,  Id.  259; 
Peat  V.  Crane,  2  Dick.  499,  n. ;  Clough  v.  Bond,  3  Myl.  &  Cr.  496. 

8  Howe  V.  Dartmouth,  7  Ves.  150;  Band  v.  Fardell,  7  De  G.,  M.  &  G. 
638 ;  King  v.  Talbott,  40  N.  Y.  86. 

4  Re  Miles's  Will,  5  Jur.  (n.  s.)  1266 ;  Dodson  v.  Sammell,  6  Jur. 
(n.  8.)  137 ;  1  Dr.  &  Sm.  575.  The  Vice-Chancellor  held  the  other  way 
in  Page  v.  Bennett,  2  Gif.  117;  Simson's  Trusts,  1  John.  &  H.  89;  Mor- 
timer V.  Picton,  4  De  G.,  J.  &  S.  166,  179. 

571 


§  456.]  INVESTMENT.  [CHAP.  XV, 

per  cent  annuities,  reduced  <£S  per  cent  annuities,  and  new 
£3  per  cent  annuities."  There  are  also  provisions  in  the 
act  by  which  trustees  may  apply  to  the  court  for  leave  to 
change  their  investments  into  those  now  allowed  by  the  act 
and  the  court ;  but  the  act  does  not  apply  where  the  fund  is 
settled  specifically  and  there  is  no  power  of  varying  the  secu- 
rities.i  Courts  may  give  directions  as  to  investments  by  trus- 
tees by  decrees  in  particular  suits,  or  by  the  promulgation  of 
general  orders  or  rules  of  court.^  It  is  said  that  the  public 
policy  in  England  of  compelling  trustees  to  invest  trust  funds 
in  government  funds  originated  largely  in  the  necessities  of 
the  government,  and  the  public  advantage  of  creating  a  market 
and  demand  for  government  securities.^ 

§  456.  The  English  rule,  in  relation  to  •  investments  of 
trust  funds  in  bank  stock  and  shares  in  trading  and  manu- 
facturing corporations,  prevails  in  New  York  and  Pennsyl- 
vania.* It  is  agreed,  that  trustees  cannot  invest  trust  funds 
in  trade,  nor  directly  in  manufacturing,  nor  in  business  gen- 
erally, nor  in  personal  securities,  unless  there  is  an  authority 
contained  in  the  instrument  of  trust.  The  reasoning  is,  that 
trustees  cannot  use  the  trust  fund  in  carrying  on  a  private 
manufacturing  establishment,  nor  in  the  business  of  private 
bankers,  nor  in  underwriting,  nor  in  trade  and  commerce, 
and  that  there  is  no  difference  in  principle  between  carrying 
on  such  enterprises  themselves  with  the  trust  fund,  or  lending 
it  to  other  individuals  to  do  so  on  their  personal  security,  and 
buying  shares  or  stocks  in  sucli  business  corporations  carried 
on  by  other  private  individuals,  or  by  the  trustees  themselves, 
as  officers  or  agents.  Perhaps  these  are  the  only  States  in 
which  the  strict  English  rule  is  liolden.     In  Maryland,  invest- 

1  Ward's  Settlement,  2  John.  &  H.  191 ;  Ex  parte  Great  Northern 
Railw.  Co.,  L.  R.  9  Eq.  274;  In  re  Wilkinson,  Id   343. 

2  Wheeler  v.  Perry,  18  N.  H.  307. 
8  Brown  v.  Wri,^ht,  39  Ga.  96. 

*  Ackerman  v.  Emott,  4  Barb.  626;  Hemphill's  App.,  18  Pa.  St.  303; 
Worrall's  App.,  22  Pa.  St.  44;  Morris  v.  Wallace,  3  Barr,  319;  Nyce's 
Est.,  5  Watts  &  S.  254. 

572 


CHAP.  XV.  1    BANK  SHARES  AND  CORPORATIONS.        [§  456. 

ments  in  bank  stock,  gas  stock,  etc.  are  good.^  In  Massachu- 
setts, it  is  held  that  trustees  may  invest  in  bank  stocks,  and 
in  the  shares  of  manufacturing  and  insurance  corporations,''^ 
or  in  the  notes  of  individuals  secured  by  such  stocks  and 
shares  as  collateral  security ,3  or  in  certificates  of  deposit 
issued  by  a  National  Bank.*  The  court  justifies  this  rule  in 
an  elaborate  opinion,  affirming  that  such  stocks  are  subject  to 
no  greater  fluctuations  than  government  securities  ;  that  they 
are  as  safe  as  real  securities,  which  may  depreciate  in  value, 
or  the  title  fail ;  that  claims  against  such  corporations  can 
be  enforced  at  law,^  while  government  funds  can  only  be 
enforced  by  supplicating  the  sovereign  power ;  and  that  gov- 
ernment securities  have  hitherto  been  so  limited  in  amount 
that  it  was  impossible  for  the  trust  funds  of  the  country  to 
be  invested  in  that  manner.  The  last  reason  no  longer  ex- 
ists. There  are  now  national,  state,  county,  town,  and  city 
bonds  in  sufficient  amounts  to  absorb  all  trust  funds  seeking 
investment,  and  it  is  not  to  be  denied  that  such  investments 
are  more  permanent  and  safe.  It  may  be  admitted,  that 
great  public  emergencies  and  national  dangers  have  an  un- 
favorable effect  upon  the  value  of  public  securities ;  but  such 
emergencies  and  dangers  have  the  same  effect  upon  the  stocks 
of  private  corporations.  In  addition  to  these  depressing  in- 
fluences, the  capital  of  such  companies  runs  the  risks  and 
chances  of  trade,  business,  and  speculation.  Calamities  that 
depress  public  credit  seldom  occur,  while  the  risks  of  trade 

J  McCoy  V.  Horwitz,  62  Md.  183. 

2  Harvard  Coll.  v.  Amory,  9  Pick.  446. 

3  Lovell  V.  Minot,  20  Pick.  116;  Brown  v.  French,  125  Mass. 
410. 

4  Hunt,  Appellant,  141  Mass.  515,  523. 

5  It  is  said  that  loans  by  the  city  of  Boston  always  command  a  higher 
premium  in  the  market  than  the  loans  of  the  Commonwealth.  The  differ- 
ence in  part  is  said  to  be  that  the  city  of  Boston  can  be  sued  upon  its 
contracts,  and  a  judgment  against  it  can  be  satisfied  by  seizing,  upon  an 
execution,  any  property  of  any  citizen  within  the  municipal  limits;  while 
no  suit  can  be  maintained  against  the  State,  but  everything  depends  upon 
the  good  faith  and  honor  of  the  legislature  in  supplying  the  means  of 
payment. 

573 


§  456.]  INVESTMENT.  [CHAP.  XV. 

are  constant.  It  would  seem  to  be  the  wiser  course  to  with- 
draw the  funds,  settled  for  the  support  of  women,  children, 
and  other  parties  who  cannot  exercise  an  active  discretion  in 
the  protection  of  their  interests,  as  much  as  possible  from  the 
chances  of  business.  It  may  be  said,  that  settlors  may  always 
do  this  by  directing  in  what  manner  the  funds  settled  by  them 
shall  be  invested.  But  it  would  seem  to  be  wiser  for  the 
court  to  establish  the  safest  rule  in  the  absence  of  special 
directions,  and  leave  it  to  the  settlor,  if  he  prefers,  to  direct 
a  less  safe  investment.^ 

^  A  large  number  of  cases  have  been  adjudged  in  the  late  confederate 
States,  involving  the  legality  of  investments  by  trustees  in  the  bonds  and 
securities  of  the  confederacy.  No  new  principles  have  been  so  established 
that  it  is  necessary  to  alter  the  text;  but  for  convenience  the  principal 
cases  are  noted  in  this  place.  Under  §  34  of  the  act  of  Nov.  9,  1861,  of 
Alabama,  vrhich  authorized  trustees  to  invest  in  confederate  bonds,  or  to 
receive  payment  in  confederate  notes,  it  was  held  that  trustees  were  jus- 
tified in  making  such  investments  previous  to  the  re-establishment  of  the 
authority  of  the  United  States.  Watson  v.  Stone,  40  Ala.  451 ;  Dockey 
V.  McDowell,  41  Ala.  476.  But  a  guardian  was  held  liable  to  account  for 
the  cash  in  full,  who  received  payment  in  confederate  notes  after  the 
re-establishment  of  such  authority.  AVhere  a  trustee  procured  an  ex  parte 
order  to  invest  in  confederate  bonds,  he  was  held  liable  for  the  loss. 
Snelling  v.  McCreary,  14  Rich.  Eq.  291.  Where  a  trustee  received  pay- 
ment of  a  debt  due  to  the  trust  fund,  in  the  currency  in  common  use,  and 
reinvested  it  in  securities  which  became  worthless  by  the  result  of  the  war, 
he  was  not  held  liable  for  the  loss.  Campbell  i'.  Miller,  38  Ga.  304.  To 
the  same  effect  is  Brown  v.  Wright,  39  Ga.  96,  which  contains  an  able 
statement  of  the  policy  of  the  English  government  in  directing  trust 
funds  to  be  invested  in  public  securities. 

In  Virginia,  commissioners  who  collected  money  by  order  of  the  court 
in  confederate  notes,  and  held  a  balance  subject  to  contested  liens  until  it 
became  worthless,  .were  held  not  liable  for  the  loss.  Davis  v.  Harman, 
21  Grat.  200.  And  substantially  the  same  rule  was  held  in  Dixon  v. 
McCue,  21  Grat.  374.  In  Morgan  v.  Otey,  21  Grat.  619,  it  was  held 
that  payments  should  be  made  in  the  currency  of  the  day.  See  Kraken 
V.  Shields,  20  Grat.  377.  In  Walker  v.  Page,  21  Grat.  637,  it  was  held 
that  a  sale  of  infant's  lands  for  confederate  money  was  valid  at  the  time 
it  was  made,  and  that  further  development  of  events  did  not  vitiate  it.  In 
Myers  v.  Zetelle,  21  Grat.  733,  it  was  held  that  an  agent  or  trustee  who 
in  good  faith  sold  property,  and  invested  the  proceeds  in  confederate 
securities,  at  a  time  when  no  other  investments  were  open  to  him,  was 
protected  from  loss.     And  see  Bird  v.  Bird,  21  Grat.  711 ;  Beery  v.  Irick, 

574 


CHAP.  XV.]  REAL   SECURITIES.  [§  457. 

§  457.  The  power  to  lend  on  mortgage  was  doubted  or 
denied,  until  Lord  St.  Leonards'  act,  unless  there  was  an 
express  power  in  the  instrument  of  trust,  or  a  decree  of  the 
court.  Lord  Harcourt,  Lord  Hardwicke,  and  Lord  Alvanley 
appeared  to  have  thought  that  a  trustee  or  executor  might 
invest  the  money  in  ivell-secured  real  estates}  But  Lord  Thur- 
low  said,  that  in  latter  times  the  court  had  considered  it 
improper  to  invest  any  part  of  a  lunatic's  estate  upon  private 
security .2  Sir  John  Leach  refused  to  allow  an  infant's  money 
to  be  invested  in  that  manner,  and  expressed  surprise  that 

22  Grat.  614;  Campbell  v.  Campbell,  Id.  649;  Colrane  v.  Worrel,  30 
Grat.  434. 

In  State  v.  Simpson,  65  N.  C.  497,  it  was  held  that  a  guardian  who 
collected  in  money  which  was  well  secured  to  his  ward,  and  invested  the 
same  in  confederate  bonds,  was  guilty  of  laches,  and  was  liable  for  the 
loss.  See  Alexander  v.  Summey,  66  N.  C.  578.  An  agent  or  trustee  is 
authorized  to  receive  payment  of  debts  in  the  currency  received  by  prudent 
business  men  for  similar  purposes.  Baird  v.  Hall,  67  N.  C.  230.  See 
Wooten  V.  Sherrard,  68  N.  C.  334. 

In  Creighton  v.  Pringle,  3  S.  C.  78,  a  trustee  was  held  guilty  of  a  breach 
of  trust  in  investing  in  confederate  bonds.  Cureton  v.  Watson,  3  S.  C. 
451.     But  see  Hinton  v.  Kennedy,  Id.  459. 

If  a  trustee,  acting  in  good  faith,  receive  funds  in  bank-notes  which  are 
depreciated,  he  will  be  protected  if  such  notes  were  the  only  money  attain- 
able.    Barker  v.  McAuley,  4  Heisk.  424. 

When  a  trustee  kept  the  identical  money  received  by  him,  he  was 
allowed  to  turn  it  over  to  the  person  entitled  to  receive  it,  without  loss  to 
himself;  but  if  he  has  not  kept  it,  he  will  be  charged  with  the  nominal 
sums  collected  by  him.     Saunders  v.  Gregory,  3  Heisk.  507. 

In  Texas,  trustees  could  not  receive  confederate  money  in  discharge  of 
obligations  to  them.  Turner  v.  Turner,  36  Tex.  41.  And  see  Scott  v. 
Atchison,  Id.  76;  Kleberg  v.  Bond,  31  Tex.  611;  Woods  v.  Toombs,  36 
Tex.  85;  Turpin  v.  Sanson,  Id.  142;  McGar  v.  Nixon»  Id.  289;  Lacey  v. 
Clements,  Id.  661. 

In  the  Supreme  Court  of  the  United  States  payment  to  an  agent  or 
trustee  in  anything  but  lawful  money  of  the  United  States,  or  bank- 
notes of  the  current  value  of  their  face,  is  held  invalid.  Ward  v.  Smith, 
7  Wall.  451;  Horn  v.  Lockhart,  17  Wall.  570;  McBurney  v.  Carson,  99 
U.  S.  567. 

1  Brown  v.  Litton,  1  P.  Wms.  141;  Lyse  v.  Kingdon,  1  Coll.  188; 
Knight  V.  Plymouth,  1  Dick.  126  ;  Pocock  v.  Reddington,  5  Ves. 
800. 

*  Ex  parte  Calthorpe,  1  Cox,  182;  Ex  parte  Ellice,  Jac.  234. 

575 


§  457.]  INVESTMENT.  [CHAP.  XV. 

any  precedent  could  be  found  to  the  contrary.^  In  a  late 
case,  the  trustees  invested  in  mortgages  at  the  request  of  the 
tenant  for  life,  and  to  procure  a  higher  rate  of  interest,  and 
they  were  held  liable  for  the  loss ;  but  the  case  did  not  go  to 
the  full  extent  of  deciding  that  trustees  could  not  invest  on 
real  securities,  for  the  reason  that  they  had  consulted  the 
interests  of  the  tenant  for  life,  at  the  expense  of  those  of  the 
remainder-man,  but  the  court  did  not  favor  mortgages.^  If 
trustees  are  directed  to  invest  in  public  funds,  of  course  they 
cannot  invest  in  mortgages.^  Previous  to  the  acts  before 
mentioned,"*  courts  did  not  sanction  mortgages  ;  ^  but  the 
practice  is  now  relaxed,  and  a  loan  upon  freeholds  of  inher- 
itance to  the  extent  of  two-thirds  of  their  value  may  be 
allowed.^  But  the  rule  of  two-thirds  is  not  inflexible.  It 
may  be  improper  to  loan  even  two-thirds  of  the  present  value ; 
as,  where  the  value  depends  upon  the  chances  of  trade  or 
business,  and  where  the  property  consists  of  houses  liable  to 
deterioration.'^  So  it  may  not  be  a  breach  of  trust  under 
certain  circumstances  to  loan  more  than  two-thirds.^  Trus- 
tees ought  not  to  lend  on  a  second  mortgage,  though  it  might 
not  be  a  breach  of  trust  in  all  cases  to  do  so  ;  ^  and  so  they 

1  Norbury  v.  Norbury,  4  Madd.  191 ;  Widdowson  v.  Duck,  2  Mer.  494; 
Ex  parte  Fust,  1  C.  P.  Coop.  (t.  Cott.)  157,  n.  (e);  Ex  parte  Franklyn, 
1  De  G.  &  Sm.  531;  Ex  parte  Johnson,  1  Moll.  128;  Ex  parte  Ridgway, 
1  Hog.  309. 

2  Raby  v.  Ridehalgh,  7  De  G.,  M.  &  G.  108. 

8  Pride  v.  Fooks,  2  Beav.  430 ;  Waring  v.  Waring,  3  Ir.  Ch.  331. 
*  A  nte,  §  455. 

5  Barry  v.  Marriott,  2  De  G.  &  Sm.  491 ,  Ex  parte  Franklyn,  1  De  G. 
&  Sm.  531. 

6  Stickney  v.  Sewell,  1  Myl.  &  Cr.  8;  Norris  v.  Wright,  14  Beav.  307; 
Macleod  v.  Annesly,  16  Beav.  600. 

■^  Ibid.;  Phillipson  v.  Gatty,  7  Hare,  16;  Drosier  v.  Brereton,  15  Beav. 
221;  Stretton  v.  Ashmall,  3  Dr.  9 ;  3  De  G.  26,  L.  J.  Ch.  277,  Farrar  v. 
Barraclough,  2  Sm.  &  Gif.  231. 

^  Jones  I'.  Lewis,  3  De  G.  &  Sm.  471.  This  case  was  reversed  on  ap- 
peal.    See  Lewin  on  Trusts,  263  (5th  ed.). 

^  Norris  v.  Wright,  14  Beav.  291;  Drosier  v.  Brereton,  15  Beav.  221; 
Robinson  v.  Robinson,  11  Beav.  371;  1  De  G.,  M.  &  G.  217;  Waring  v. 
Waring,  3  Ir.  Eq.  337;  Lockhart  v.  Reilly,  1  De  G.  &  J.  476 ;  Nance  v. 
Nance,  1  S.  C.  209. 
576 


CHAP.  XV.]  REAL   SECURITIES.  [§  458. 

ought  to  have  a  power  of  sale  inserted  in  the  deed,  although 
it  might  not  be  a  breach  of  trust  to  neglect  it.^ 

§  458.  There  can  be  no  doubt  that  mortgages  on  real  estate 
are  considered  proper  investments  in  the  United  States,  and 
perhaps  they  are  the  only  investments  which  are  not  objec- 
tionable in  some  one  of  the  States.  In  the  absence  of  public 
funds  to  an  amount  hitherto  sufficient  to  absorb  the  money 
to  be  invested  by  trustees,  different  rules  have  been  estab- 
lished in  the  several  States,  but  mortgages  upon  estates  of 
inheritance,  taken  with  proper  caution  as  to  the  amount  and 
the  title,  have  been  named  in  all  the  States  as  proper  and 
safe  investments  ;  so  that  the  question  in  the  United  States 
is  whether  the  security  is  in  fact  what  it  is  called,  security 
upon  real  estate.  A  loan  to  a  company  owning  coal  lands 
and  a  canal,  to  a  much  greater  value  than  its  debts,  the  inter- 
est on  the  loan  being  a  preferred  claim  upon  the  income,  was 
held  to  be  substantially  on  real  estate ;  ^  but  an  investment 
in  the  stock  of  a  similar  company,  which  stock  was  not  pre- 
ferred, was  held  to  be  a  breach  of  trust.^  An  investment  in 
railway  bonds,  secured  by  a  mortgage  of  the  road-bed,  fran- 
chise, and  other  property,  is  not  real  security,  though  real 
estate  is  covered  by  the  mortgage  ;  for  the  method  of  enfor- 
cing such  a  bond  is  very  different  from  the  ordinary  manner 
of  foreclosing  a  mortgage,  and  whether  such  a  bond  can  be 
enforced  at  all  depends  upon  the  concurrent  will  of  so  many 
bondholders,  that,  at  best,  it  is  only  nominal  real  estate.* 
London  Dock  stock  and  sewer  bonds  are  not  real  security.^ 
It  is  not  a  breach  of  trust  to  leave  funds  in  turnpike  bonds, 
secured  by  a  mortgage  of  the  tolls  and  real  estate  of  the  com- 

1  Farrar  v.  Barraclough,  2  Sra.  &  Gif.  231. 

2  Twaddell's  App.,  5  Barr,  1.5. 
8  Worrall's  App.,  9  Barr,  508. 

*  Mant  V.  Leith,  15  Beav.  524 ;  Allen  v.  Gaillard,  3  S.  C.  279.  It  is  not 
sufficient  for  a  trustee  to  say,  in  defence  of  an  investment,  that  it  is  on  real 
security.  There  are  other  things  to  be  considered,  the  nature  of  the  prop- 
erty and  other  matters.  The  property,  though  sufficient,  maybe  involved 
in  litigation.     Per  Master  of  Rolls  in  Mant  v.  Leith. 

^  Robinson  v.  Robinson,  11  Beav.  371. 
VOL.  I.  — .37  577 


§  458.]  INVESTMENT.  [CHAP.  XV. 

pany,  as  they  had  been  invested  by  the  testator.^  Under  the 
right  of  the  trustees  to  invest  trust  funds  in  real  securities, 
they  cannot  convert  the  funds  into  real  estate  by  taking  the 
legal  title  absolutely  to  themselves  in  trust ;  and  if  they  do 
so,  the  cestui  que  trust  may  elect  to  take  the  land,  or  the  trust 
money  and  interest ;  ^  though  a  direction  to  invest  in  produc- 
tive real  estate  was  held  to  justify  the  purchase  of  dwelling- 
houses,  or  the  purchase  of  a  right  of  dower  in  order  to  render 
the  property  more  productive.^  If  a  testator  has  already 
invested  in  mortgages,  a  trustee  may  make  such  further  ad- 
vances of  money  as  are  necessary  to  secure  the  first  invest- 
ment. No  general  rule  can  be  stated ;  but  the  trustee  in 
such  case  must  make  a  careful  investigation  and  exercise  a 
sound  discretion,  or  his  advances  will  not  be  allowed  in  case 
of  a  loss.*  And  so  a  guardian,  in  case  of  a  grave  emergency, 
may  buy  in  land  for  the  minor  to  save  a  certain  loss  ;  ^  so  an 
administrator  may  buy  in  the  land  of  a  debtor  to  his  estate 
to  save  the  debt.^  Such  an  investment  is  a  mere  temporary 
expedient,  and  is  to  be  treated  as  personal  estate."  A  loan 
of  trust  funds  on  real  mortgage  does  not  change  the  character 
of  the  funds,  nor  constitute  an  investment  in  real  estate.^ 
The  court  may  order  an  investment  of  accumulations,  or  of 
the  principal  fund  temporarily  in  real  estate,  with  a  declara- 

1  Robinson  v.  Robinson,  21  L.  J.  Ch.  Ill;  1  De  G.,  M.  &  G.  247; 
Miller  v.  Proctor,  20  Ohio  St.  444. 

2  Mathews  v.  Heyward,  2  S.  C.  239;  Ouseley  v.  Anstruther,  10  Beav. 
4.56;  Royer's  App.,  11  Pa.  St.  36;  Kaufman  v.  Crawford,  9  Watts  &  S. 
131;  Bonsall's  App.,  1  Rawle,  273;  Bellington's  App.,  3  Rawle,  55; 
Ringgold  V.  Ringgold,  1  H.  &  G.  11;  Morton  v.  Adams,  1  Strob.  Eq. 
72;  Heth  v.  Richmond,  &c.  Co  ,  4  Grat.  482;  Eckford  v.  De  Kay,  8  Faige, 
89;  Winchelsea  v.  Nordcliffe,  1  Vern.  134.  And  if  a  mortgage  is  given 
back,  the  mortgagor,  if  he  have  notice  of  the  misapplication  of  the  trust 
fund,  cannot  enforce  his  mortgage  until  the  fund  has  first  been  replaced. 
Mathews  v.  Heyward,  2  S.  C.  239. 

3  Parsons  v.  Winslow,  16  Mass.  368. 

4  Collinson  v.  Lister,  20  Beav.  356. 

5  Bonsall's  App.,  1  Rawle,  273;  Royer's  App.,  11  Pa.  St.  36. 
«  Bellington's  App.,  3  Rawle,  55. 

7  Oeslager  v.  Fisher,  2  Pa.  St.  467. 

8  Milhous  V.  Dunham,  78  Ala.  48. 

578 


CHAP.  XV,]  REAL   SECURITIES.  [§  459. 

tion  that  it  shall  continue  personalty  ;  ^  and  so  a  court  may 
order  an  investment  in  real  estate  generally,  where  no  other 
way  is  pointed  out  in  the  trust  instrument.^  Where  a  trus- 
tee or  guardian  is  obliged  to  take  land  subject  to  a  mortgage, 
the  trustee  becomes  personally  liable  to  pay  off  the  mortgage, 
to  protect  the  interest  of  the  cestui  que  trust.  In  such  case,  the 
guardian  or  trustee  may  have  the  possession  of  the  estate  or 
the  management  of  the  trust  fund,  in  order  to  secure  himself 
for  the  advancement  so  made.^  But  there  must  be  an  urgent 
necessity  to  justify  such  a  proceeding.  If  a  trustee  is  author- 
ized to  invest  in  real  estate,  stock,  or  securities,  he  cannot 
mortgage  the  trust  fund  in  order  to  raise  money  to  invest  in 
such  manner,  nor  invest  in  machinery  for  the  use  of  the  cestui 
que  trust.'^  In  all  cases  the  trustee  ought  to  exercise  high 
diligence  in  ascertaining  the  valuation,  situation,  condition, 
and  productiveness  of  the  real  estate  or  other  property  upon 
which  it  is  proposed  to  make  a  loan  of  the  trust  money ;  for 
he  will  be  liable  for  the  loss  if  he  is  guilty  of  any  negligence 
in  this  respect.^ 

§  459,  In  a  few  States,  there  are  statutes  authorizing  trus- 
tees to  invest  in  a  particular  manner,  and  excusing  them  fi'om 
responsibility  if  their  investments  are  made  in  good  faith 
in  the  prescribed  securities.  Thus  in  Pennsylvania,^  an  ex- 
ecutor, guardian,  or  trustee  may  apply  to  the  Orphans'  Court, 
and  the  court  may  direct  an  investment  in  the  stocks  or 
public  debt  of  the  United  States,  of  the  State,  or  of  the  city 
of  Philadelphia,  or  in  real  securities,  or  in  the  stock  of  the 
incorporated  districts  of  Philadelphia  County,  of  Pittsburg 
and  Alleghany,  and  the  water-works  of  Kensington,  Phila- 
delphia County.  But  it  has  been  held  that  trustees  are  not 
confined  to  these  funds  ;  that  the  acts  are  for  their  benefit ; 

1  Webb  V.  Shaftesbury,  6  Madd.  100. 

2  Ex  parte  Calmes,  1  Hill,  Eq.  112. 
8  Woodward's  App.,  38  Pa.  St.  322. 
"  Rider  v.  Sisson,  7  R.  I.  311. 

6  Budge  V.  Gnmmon,  L.  R.  7  Ch.  721 ;  Smethurst  v.  Hastings,  30  Ch. 
D.  490;  Olive  v.  Westerman,  34  Ch.  D.  70;  Whiteley  v.  Learoyd,  33  Ch 
D.  347.  6  Acts  1832,  1838,  1850,  1852. 

579 


§  459,]  INVESTMENT.  [CHAP.  XV. 

that  they  can  elect  other  kinds  of  investment,  but  will  be 
responsible  for  losses.^  In  New  York,  there  does  not  ap- 
pear to  be  any  legislation  on  the  subject ;  but  trustees  are 
bound  by  the  rules  of  the  court  to  invest  in  real  securities, 
or  government  bonds,  or  in  the  State  loan,  or  in  loans  of  the 
New  York  Life  Insurance  and  Trust  Company.^  In  New 
Jersey,  a  statute  authorized  an  investment  to  be  made  upon 
an  application  to  the  court,  but  does  not  establish  any  partic- 
ular funds.  In  Gray  v.  Fox,  the  court  lay  down  the  rule 
that  investments  must  be  made  in  government  stocks,  or  in 
real  security.^  In  Maryland,  there  is  neither  statute  nor  rule 
of  court  to  guide  the  trustees.  The  courts  do  not  approve 
of  changes  in  investments,  unless  express  power  is  given 
in  the  instrument  of  trust ;  as  where  a  testator  gave  certain 
stocks  in  trust  without  direction  to  vary  the  security,  and 
the  trustee  disposed  of  the  stocks  and  invested  the  money 
in  other  securities,  he  was  ordered  to  replace  the  entire  sum 
in  the  same  stocks,  although  the  number  of  shares  were 
increased  by  the  change."*  In  Maine,  New  Hampshire,  Ver- 
mont, Michigan,  and  Missouri,  the  courts  may,  upon  appli- 
cation, direct  trustees  as  to  the  manner  of  investment,  but  no 
special  investments  are  pointed  out.^  If  trustees  invest  ac- 
cording to  the  direction  of  the  courts,  they  are  not  respon- 
sible for  any  loss.  In  Georgia,  if  trustees  invest  in  the 
stocks,  bonds,  or  other  securities,  issued  by  their  own  State, 
or  in  such  other  securities  as  shall  be  ordered  by  the  court, 
they  will  be  exempt  from  loss.^      In  Mississippi,  an  invest- 

1  Barton's  Est.,  1  Pars.  Eq.  24;  Worrall's  App.,  9  Barr,  108;  T wad- 
dell's  App.,  5  Barr,  15. 

2  Ackerman  v.  Emott,  4  Barb.  626;  and  see  Smith  i'.  Smith.  4  Johns. 
Ch.  281,  445  ;  King  v.  Talbott.  40  N.  Y.  86,  97.  This  case  contains  a  full 
discussion  of  the  law  in  New  York.     Hun  v.  Gary,  82  N.  Y.  65. 

3  Gray  v.  Fox,  Saxton,259  ;  Lathrop  i'.  Smalley,  23  N.  J.  Eq.  192;  Cor- 
liss V.  Corliss,  Id. 

*  Murray  v.  Feinour,  2  Md.  Ch.  418;  Evans  v.  Tglehart,  6  Gill  &  J.  192; 
Gray  v.  Lynch,  8  Gill,  405;  Hammond  ».  Hammond,  2  Bland,  306. 

°  Knowlton  v.  Brady,  17  N.  H.  458.  It  is  impossible  to  cite  the  statutes 
of  all  the  States.  Practising  attorneys  will  of  course  know  the  legislation 
of  their  own  States. 

6  Ga.  Rev.  Code,  §  320;  Brown  v.  Wright,  39  Ga.  96. 
680 


CHAP.  XV.]  INVESTMENT.  [§  460. 

ment  in  bank  stocks  is  allowed.^  In  States  where  there  are 
no  statutes  nor  rules  of  court  regulating  investments,  trustees 
are  bound  to  act  in  good  faith  and  with  a  sound  discretion 
in  investing  trust  money ;  and  if  they  so  act  they  are  not 
responsible  for  any  loss  that  may  happen,^  but  to  invest  in 
mere  personal  securities  is  not  a  sound  discretion  anywhere.^ 
Nor  is  it  a  sound  discretion  for  trustees  to  subscribe  trust 
funds  to  new  enterprises,  as  for  the  stock  of  new  manufac- 
turing, insurance,  or  railroad  corporations,  whien  the  under- 
taking must,  in  the  nature  of  things,  be  experimental ;  and 
it  will  not  excuse  the  trustee  that  he  subscribes  his  own 
money  to  such  enterprises,  as  it  is  permitted  to  him  to  specu- 
late with  his  own  money  if  he  sees  fit* 

§  460.  The  instrument  of  trust  frequently  contains  direc- 
tions respecting  the  investment  of  the  trust  funds.  If  the 
directions  are  so  general  that  they  do  not  point  to  any  par- 
ticular class  or  classes  of  investments,  the  trustees  must  in- 
vest in  those  securities  that  are  sanctioned  by  the  court;  as, 
if  the  trust  is  to  invest  in  "  good  and  sufficient  security," 
the  court  will  sanction  no  security  not  allowed  by  its  rules 
and  orders.^  If  the  trustee  is  to  invest  at  his  "  discretion," 
he  cannot  invest  in  personal  securities.^      The  powers  and 

1  Smyth  V.  Burns,  25  Miss.  422.  These  rules  and  regulations  are  estab- 
lished for  the  protection  of  trustees:  so  long  as  they  in  good  faith  confine 
their  investments  to  those  allowed  by  law,  they  are  protected  from  loss. 
Stanley's  App.,  8  Pa.  St.,  432;  Twaddell's  App.,  9  Pa.  St.  108;  Seidler's 
Est.,  5  Phila.  85;  Barton's  Est.,  1  Pars.  Eq.  24;  Johnson's  App.,  4-3  Pa. 
St.  431;  Morris  v.  Wallace,  3  Pa.  St.  319;  McCahan's  App.,  7  Pa.  St.  56  ; 
Nyce's  Est.,  5  Watts  &  S.  254;  Hemphill's  App.,  18  Pa.  St.  303;  Ptush's 
Est..  12  Pa.  St.  378. 

2  Clark  V.  Garfield,  8  Allen,  427. 
8  Ante,  §  453. 

*  Kimball  v.  Reading,  31  N.  H.  3.52;  Ihrasen's  App.,  43  Pa.  St.  471. 

6  Booth  V.  Booth,  1  Beav.  125;  Trafford  v.  Boehm,  3  Atk.  440;  De 
Manneville  v.  Crompton,  1  V.  &  B.  259  ;  Wilkes  v.  Steward,  Coop.  0; 
Ryder  v.  Bickerton,  3  Swanst.  80  n.;  Nance  v.  Nance,  1  S.  C.  209;  Womack 
V.  Austin,  Id.  421. 

*  Ibid.;  Pocock  v.  Reddington,  5  Ves-  794;  Wormley  v.  Wormley, 
8  Wheat.  421;  1  Brock.  339  ;  Langston  u.  OUivant,  Coop.  33. 

581 


§  460.]  INVESTMENT.  [CHAP.  XV. 

directions  given  in  the  instrument  must  be  strictly  followed ;  ^ 
thus  a  power  to  invest  in  bank  stocks  or  lots  of  land  will 
not  authorize  an  investment  in  the  loan  of  the  United  States.^ 
A  power  to  loan  on  7'eal  securities  does  not  justify  a  loan 
upon  railroad  bonds  secured  by  mortgage  of  the  road  ;  ^  nor 
does  a  power  to  loan  upon  mortgage  authorize  an  investment 
in  railroad  mortgage  bonds.*^  A  power  to  invest  in  "  good 
and  sufficient  securities  in  Virginia  and  Maryland,"  author- 
izes a  loan  upon  town  securities.^  A  direction  to  invest 
"  in  any  public  stocks  or  securities  bearing  an  interest,"  em- 
braces a  coal  and  navigation  company,  that  being  within  the 
popular  meaning  of  the  testator.^  If  there  is  a  direction  to 
invest  trust  funds  in  real  securities  in  a  foreign  jurisdic- 
tion, the  court  will  allow  the  investment ; '  but  if  no  such 
power  is  given,  such  investment  will  not  be  allowed.^  Where 
trustees  were  authorized  in  their  discretion  to  invest  in  a 
dwelling-house  for  the  daughter  of  the  testator,  and  she  was 
married  and  went  to  reside  in  a  foreign  jurisdiction,  it  was 
held,  that  they  might  invest  in  a  dwelling-house  at  the  place 
of  her  residence,  although  it  was  in  a  foreign  jurisdiction.^ 
But  where  they  were  authorized  to  invest  in  bonds,  debent- 
ures, or  other  securities,  or  the  stocks  or  funds  of  any  colony 
or  foreign  country,  they  were  not  allowed  to  invest  in  rail- 
way   bonds,  though    guaranteed  by  a  foreign    government.^*^ 

1  Wood  V.  Wood,  5  Paige,  596;  Burrill  t'.  Sheil,  2  Barb.  457,  W'omack 
V.  Austin,  1  S.  C.  421;  Sauders  r.  Rogers,  Id,  452;  Ilmiseu's  App.,  43  Pa. 
St.  471. 

2  Banister  v.  McKenzie,  6  Munf.  447. 

3  Moi  timore  v.  Mortimore,  4  De  G.  &  J.  472 ;  Mant  v.  Leith,  15  Beav. 
525;  Harris  v.  Harris,  29  Beav.  107;  King  v.  Talbott,  50  Barb.  453;  40 
N.  Y.  86;  Allen  v.  Gaillard,  1  S.  C.  279;  Bromley  v.  Kelly,  39  L.  J.  Ch. 
274.  *  Ibid. 

*  McCall  V.  Peachy,  3  Munf.  288.  But  if  such  securities  are  greatly 
depreciated,  it  would  be  a  breach  of  trust  to  invest  in  them.  Trustees, 
&c.  V.  Clay,  2  B.  Mon.  386. 

6  Rush's  Est.,  12  Pa.  St.  375.     See  Hemphill's  App.,  18  Pa.  St. 303. 

7  Burrill  v.  Sheil,  2  Barb.  457. 

8  Rush's  App.,  12  Pa.  St.  375. 

9  Amory  v.  Green,  13  Allen,  413. 

10  In  re  Langdale's  Settlement,  Ti-ust,  L.  R.  10  Eq.  39. 

582 


CHAP.  XV.]  INVESTMENT.  [§  460. 

As  before  stated,  all  these  powers  are  strictly  construed ;  as, 
if  the  trustees  are  authorized  to  loan  £3000  on  personal  se- 
curities, and  they  lend  X5000,  it  is  a  breach  of  trust  ;i  and  if 
the  power  is  to  loan  on  bond,  they  cannot  loan  on  a  promis- 
sory note.2  If  the  trustees  may  loan  the  trust  fund  to  the 
husband,  with  tlie  consent  of  the  wife,  they  cannot  allow  the 
loan  to  continue  if  the  husband  becomes  bankrupt ;  and  they 
will  be  guilty  of  a  breach  of  trust,  if  they  do  not  use  due 
diligence  in  calling  in  the  loan,  or  in  collecting  such  divi- 
dends as  may  be  coming.  An  entire  change  of  circumstances 
may  change  their  duty,  although  the  wife  may  still  desire 
that  her  husband  should  have  the  use  of  the  money  .^  Gen- 
erally, where  the  trustees  are  required  to  invest  the  fund  in 
a  particular  manner,  with  the  approbation  of  any  person,  such 
requirement  becomes  imperative  upon  the  request  of  such 
person.*  So,  if  any  formalities  are  prescribed  as  to  the  invest- 
ment, they  must  be  strictly  complied  with;  as,  where  the 
written  consent  of  a  wife  is  a  prerequisite  to  a  loan  to  her 
.husband,  a  verbal  consent  will  not  relieve  the  trustees  from 
the  consequences  of  a  breacli  of  trust,  if  they  act  on  such  ver- 
bal consent.^  A  subsequent  consent  is  not  sufficient  where 
a  previous  consent  was  contemplated  ;  ^  nor  is  it  enough  for  a 
wife  to  join  the  husband  in  a  petition  for  an  order  that  a  loan 
be  made  to  him.^  If  the  trustees  go  beyond  the  prescribed 
limits,  neither  good  faith  nor  care  nor  diligence,  if  they  can 
accompany  a  departure  from  the  direction  of  the  instrument 

^  Payne  v.  Collier,  1  Ves.  Jr.  170. 

2  Greenwood  v.  Wakeford,  1  Beav.  576. 

8  Wiles  V.  Gresham,  2  Drew.  258;  24  L.  J.  Ch.  204;  Langston  v.  OUi- 
vaiit,  Coop.  33;  and  see  Boss  v.  Goodsall,  1  N.  C.  C.  617;  Burt  v.  Ingram, 
Lewin  on  Trusts,  339  (4th  ed.). 

4  Cadogan  v.  Essex,  2  Dr.  227 ;  McTntire  v.  Zanesville,  17  Ohio  St. 
3.52. 

*  Cocker  v.  Quayle,  1  R.  &  M.  535;  Hopkins  v.  Myall,  2  R.  &  M.  86; 
Kellaway  v.  Johnson,  5  Beav.  319. 

<>  Bateraan  v.  Davis,  3  Madd.  98;  Adams  v.  Broke,  1  N.  C.  C. 
627. 

^  Norris  v.  Wright,  14  Beav.  291;  Fitzgerald  v.  Pringle,  2  Moll.  534; 
Dunne  v.  Dunne,  1  S.  C.  350. 

583 


§  461.]  INVESTMENT.  [CHAP.  XV. 

of  trust,  will  protect  them  if  a  loss  occurs.^  If  it  is  impossi- 
ble for  them  to  invest  according  to  tlie  directions,  they  must 
invest  in  the  securities  prescribed  by  the  law  or  by  the  court, 

or  in  the  safest  class  of  securities.^ 

§  461.  A  direction  to  invest  in  good  freehold  security  must 
be  strictly  complied  with ;  ^  an  authority  to  invest  in  ground 
rents  authorizes  an  investment  in  redeemable  ground  rents, 
that  being  the  kind  of  ground  rent  in  the  place  where  the 
investment  is  to  be  made  ;  *  a  power  to  invest  in  good  private 
security  does  not  authorize  the  trustees  to  use  the  funds 
themselves.^  Where  stock  is  settled  on  a  husband  and  wife 
for  life,  with  remainder  to  the  children,  with  a  power  to  vary 
the  securities  for  greater  interest,  the  trustees  cannot  purchase 
an  annuity  for  one  of  the  tenants  for  life.^  If,  however,  the 
existing  securities  are  unsafe,  and  it  is  proper  to  call  in  the 
money  and  reinvest  it,  trustees  may  make  a  temporary  invest- 
ment in  safe  funds  until  an  investment  can  be  advantageously 
made  in  the  securities  directed  by  the  testator.'^  If  the  di- 
rection is  to  invest  in  land  or  any  other  security,  it  will  be 
implied  that  the  settlor  intended  the  investment  to  be  made 
in  land  if  it  could  be  done  advantageously,  and  the  alterna- 
tive part  of  the  direction  is  to  be  followed  only  in  case  an 
investment  cannot  be  made  in  land ;  and  this  construction 
will  be  followed  unless  there  is  some  other  controlling  con- 
sideration in  the  instrument.^     And  if  trustees  are  authorized 

1  Ackerinan  v.  Emott,  4  Barb.  626;  Spring's  App.,  71  Pa.  St.  11;  Ring- 
gold V.  Ringgold,  1  H   &  G.  25 ;  Cloud  u.  Bond,  3  Myl.  &  Cr.  490. 

2  Mclntire  v.  Zanesville,  17  Ohio,  352. 

3  Wyatt  V.  Wallace,  8  Jur.  117;  1  Coop.  155  n. 

4  Ex  parte  Huff,  2  Barr,  227. 

5  Westover  v.  Chapman,  1  Col.  C.  C.  177;  Forbes  v.  Ross,  2  Bro.  Ch. 
430;  2  Cox,  113;  anie,  §453. 

6  Fitzgerald  v.  Pringle.  2  Moll.  534. 

■^  Sowerby  v.  Clayton,  3  Hare,  430;  8  Jur.  597;  Mathews  v.  Brice,  6 
Beav.  329;  Ex  parte  Chaplin,  3  Y.  &  C.  397;  Knott  v.  Cottee,  6  Beav.  77; 
Bromley  v.  Kelly,  39  L.  J.  Ch.  272. 

8  Earlom  v.  Saunders,  Amb.  340;  Cookson  «.  Reay,  5  Beav.  32;  Cow- 
ley V.  Hartstonge,  1  Dow,  361 ;  Hereford  v.  Ravenhill,  5  Beav.  51 ;  Fowler 
V.  Reynal,  3  Mac.  &  G.  500;  2  De  G.  &  Sin.  749. 
684 


CHAP.  XV.]  INVESTMENT.  [§  462. 

to  lend  on  mortgage  to  three  persons,  they  cannot  lend  to  two 
of  them,  although  they  get  the  entire  interest  in  the  estate  ; 
nor  can  they  lend  to  the  three  without  the  mortgage  at  the 
time,  although  they  get  the  security  in  two  years  after.  It 
is  no  excuse  to  say  that  the  delay  did  not  occasion  the  loss. 
The  conclusive  answer  is,  that  they  committed  a  hreach  of 
trust  in  not  obeying  the  power,  and  they  must  make  good 
the  loss.^  And  so  trustees  cannot  let  money  on  a  mortgage 
to  one  of  themselves.2  Under  a  power  to  loan  on  mortgage 
they  may  continue  existing  mortgages,  if  safe.^ 

§  4G2.  A  trustee  must  invest  the  trust  funds  in  his  hands, 
in  the  manner  directed,  within  a  reasonable  time,  although  no 
direction  is  given  in  the  deed  or  will  as  to  the  time  or  manner 
of  investment.  If  he  neglects  for  an  unreasonable  time  to 
make  the  investment,  he  may  be  charged  with  interest ;  and 
if  any  loss  or  damage  occurs  to  the  cestui  que  trust  from  the 
delay,  the  trustee  must  make  it  ap.*  What  is  a  reasonable 
time  depends  upon  circumstances.  When  the  trustees  were 
directed  to  invest  in  the  purchase  of  land  with  all  convenient 
speed,  a  year  was  held  to  be  a  reasonable  time.'''  But  where 
the  trustees  are  directed  to  invest  in  freehold  securities,  they 

1  Earlom  v.  Saunders,  Amb.  340;  Cookson  v.  Reay,  5  Beav.  32;  Cow- 
ley V.  Hartstonge,  1  Dow,  361 ;  Hereford  v.  Ravenhill,  5  Beav.  51 ;  Fowler 
V.  Reynal,  3  Mac.  &  G.  500;  2  De  G.  &  Sm.  749. 

2  Stickiiey  v.   Sewell,  1   Myl.   &  Cr.  8;   v.  Walker,  5  Riiss.  7; 

Fletcher  v.  Green,  33  Beav.  426;  Francis  v.  Francis,  5  De  G.,  M.  &  G. 
108;  Crosskill  v.  Bower,  32  Beav.  86  ;  De  Jarnette  i'.  De  Jarnette,  41  Ala. 
708. 

3  Angerstein  v.  Martin,  T.  &  R.  239;  Ames  v.  Parkinson,  7  Beav. 
379. 

*  Lyse  V.  Kingdom,  1  Coll.  184;  Bates  v.  Scales,  12  Ves.  402;  Ryder 
V.  Blckerton,  3  Swanst.  80;  TrafEord  v.  Boehm,  3  Atk.  440;  Lomax  v. 
Pendleton,  3  Call,  538;  Garniss  v.  Gardner,  1  Edw.  Ch.  128;  Schieffelin 
V.  Stewart,  1  Johns.  Ch.  620;  Chase  v.  Lockerraan,  11  G.  &  J.  185;  Arm- 
strong ».  Miller,  6  Ham.  118;  Handly  v.  Snodgrass,  9  Leigh,  484;  Aston's 
Est.,  5  Whart.  228;  In  re  Thorp,  Davies,  290;  Shipp  v.  Hettrick,  63  N.  C. 
329;  Owen  v.  Peebles,  42  Ala.  338. 

6  Parry  v.  Warrington,  6  Madd.  155;  Johnson  v.  Newton,  11  Hare, 
160. 

585 


§  462.]  INVESTMENT.  [CHAP.  XV. 

will  not  be  charged  with  interest  until  it  has  been  shown 
that  they  could  have  invested  according  to  the  direction ;  for 
it  is  not  always  practicable  to  procure  such  securities.^  So  a 
year  from  the  testator's  death  was  considered  a  reasonable 
time  within  which  to  make  an  investment  in  United  States 
stock.2  On  the  other  hand,  the  Supreme  Court  of  the  United 
States  allowed  three  months  as  a  reasonable  time  within  which 
to  invest  capital  sums  of  a  trust  fund  paid  in  to  a  banker,  and 
charged  the  trustee  for  the  sum  lost  by  the  failure  of  the 
banker  after  that  time.^  In  other  cases,  six  months  have 
been  allowed  as  a  reasonable  time  within  which  to  invest 
trust  funds ;  and  trustees  liave  been  charged  with  interest 
when  they  kept  the  money  uninvested  for  a  longer  time.* 
But  where  the  trustees  make  no  effort  to  invest  the  money, 
they  may  be  charged  with  interest  from  a  period  earlier  than 
six  months.^  Where  a  trustee  or  executor  is  directed  to 
invest  a  legacy  immediately  in  stock,  and  he  retains  the  sum 
for  the  period  of  one  year  or  more,  or  for  an  unreasonable 
time,  and  the  price  of  the  stock  rises,  he  will  be  ordered  to 
purchase  as  much  stock  as  could  have  been  purchased  at  the 
time  the  fund  ought  to  have  been  invested.*'  Where  trustees 
were  directed  to  invest  in  the  funds,  and  they  paid  the  money 
Into  a  bankers  with  directions  to  invest  in  bank  annuities, 
which  the  banker  neglected  to  do,  and  the  trustees  made  no 
inquiry  for  five  months,  they  were  held,  after  the  failure  of 

1  Wyatt  V.  Wallis,  1  Coop,  154  n.;  8  Jur.  117. 

2  Cogswell  V.  Cogswell,  2  Edw.  Ch.  231.  This  was  in  analogy  to  the 
payment  of  legacies,  whicli  may  be  done  in  one  year;  a  trustee  with  ready 
money  ought  to  invest  with  more  promptness. 

3  Barney  v.  Saunders,  16  How.  543. 

*  Dunscomb  v.  Dunscomb,  1  Johns.  Ch.  508;  Manning  v.  Manning, 
Id.  527;  Merrick's  Est.,  2  Ash.  485;  Worrall's  App  ,  23  Pa.  St.  44;  Arm- 
strong r.  Walkup,  12  Grat.  608;  Hooper  v.  Savage,  1  Munf.  119;  Frey 
V.  Frey,  2  C.  E.  Green,  72. 

5  Ringgold  V.  Ringgold,  1  H.  &  G.  U;  Witmer's  App.,  87  Pa.  St.  120. 
Two  months  not  an  unreasonable  allowance  of  time  for  reinvestment. 

«  Byrchall  v.  Bradford,  6  IMadd.  235;  Pride  v.  Fooks,  2  Beav.  430; 
Watts  V.  Girdlestone,  6  Beav.  188;  Clough  v.  Bond,  3  Myl.  &  Cr.  496; 
Robinson  v.  Robinson,  1  De  G.,  M.  &  G.  256;  Phillipsou  v.  Gatty,  7  Hare, 
516. 

586 


CHAP.  XV.]  INVESTMENT.  [§  462. 

the  banker,  for  the  money  or  the  stock  at  the  option  of  the 
cestui  que  truHt}  Trustees  and  guardians  are  held  to  a  stricter 
rule  in  relation  to  investments  than  executors  acting  as  trus- 
tees, for  trustees  and  guardians  generally  take  an  estate  ready 
to  be  invested ;  and  trustees  will  be  held  to  a  stricter  rule  in 
relation  to  capital  sums,  than  in  relation  to  current  income 
from  interest,  dividends,  rents,  and  other  smaller  sums  ;  thus 
in  Barney  v.  Saunders,^  before  cited,  three  months  were  held 
a  reasonable  time  within  which  trustees  ought  to  have  in- 
vested capital  sums  paid  into  the  banker's,  and  they  were 
held  responsible  for  the  loss  of  capital  after  that  time  by  the 
failure  of  the  banker,  while  they  were  not  held  liable  to 
replace  small  sums  paid  into  the  same  banker's  from  the 
rents,  interest,  and  dividends  upon  the  same  estate.  An 
executor  will  not  in  general  be  charged  with  interest  for  not 
investing  before  the  expiration  of  a  year  from  the  testator's 
death.3  A  year  is  a  reasonable  time  within  which  an  executor 
may  call  in  the  testator's  estate  and  pay  off  his  liabilities ; 
and  it  is  necessary,  during  that  time,  that  the  executor  should 
keep  the  money  on  hand.  In  most  States  an  executor  is 
allowed  that  time  by  statute ;  and  he  is  exempt  from  suit  by 
creditors  during  that  year.  After  that  time,  if  an  executor 
keeps  money  in  his  hands  without  any  apparent  reason,  except 
for  the  purpose  of  using  it,  it  becomes  a  breach  of  trust  or 
negligence ;  and  the  court  may  charge  him  with  interest,  or 
with   the   principal   sum   if   lost.*     So   an   executor  will   be 

1  Challen  v.  Shippam,  4  Hare,  555. 

2  Barney  v.  Saunders,  16  How.  545;  Lomax  ?>.  Pendleton,  3  Call,  538. 

8  But  where  it  is  the  duty  of  executors  within  a  reasonable  time  to 
separate  a  legacy  from  the  estate,  and  to  invest  it  to  accumulate,  or  for 
the  support  and  maintenance  of  the  legatee,  neglect  to  do  so  makes  them 
chargeable  with  legal  interest;  and  they  will  not  be  allowed  to  limit  their 
liability  by  showing  the  rate  of  interest  received  upon  the  general  fund, 
nor  be  excused  by  the  fact  that  it  was  for  the  interest  of  the  residuary 
legatee  to  have  the  funds  kept  together.  Fowler  v.  Colt,  25  N.  J.  Eq. 
202. 

4  Forbes  v.  Ross,  2  Cox,  115;  Flanagan  v.  Nolan,  1  Moll.  85;  Moyle 
V.  Moyle,  2  R.  &  M.  710;  Johnson  v.  Newton,  11  Hare,  160;  Hughes  v. 
Empson,  22  Beav.  181;  Johnston  v.  Prendergast,  28  Beav.  480;  William- 

687 


§  463.]  INVESTMENT.  [CHAP.  XV. 

charged  with  interest  during  the  year,  if  he  receives  interest 
by  loaning  or  using  the  money.^ 

§  463.  Trustees  ought  not  to  mix  trust  money  with  other 
moneys,  and  take  a  joint  mortgage  for  the  whole,  for  this 
would  be  to  complicate  the  trust  with  the  rights  of  strangers ; 
nor  should  a  mortgage  in  such  case  be  taken  in  the  name  of  a 
common  trustee,  for  that  would  be  a  delegation  of  the  rights 
of  the  trustee ;  ^  but  where  the  trust  fund  was  very  small,  it 
was  held  to  be  proper  for  a  trustee  to  put  some  of  his  own 
money  with  it  in  order  to  loan  it  to  the  best  advantage  on  a 
mortgage.^  Trustees  must  personally  see  to  it,  that  the  secur- 
ity is  forthcoming  upon  parting  with  the  money;*  as,  where 
they  allowed  their  solicitors  to  receive  the  money  upon  repre- 
sentations that  the  mortgage  was  ready,  and  there  was  no 
mortgage,  and  the  solicitors  misapplied  the  money,  the  trus- 
tees were  held  to  make  up  tlie  loss.^  When  the  money  is 
paid  in  to  a  banker  or  broker  for  investment,  the  trustees 
must  see  that  the  investment  is  made  at  once,  and  the  securi- 
ties taken  in  the  proper  form,  or  they  will  be  liable  for  any 
loss  that  may  happen  ;  ^  or  where  money  is  suffered  to  remain 
in  the  hands  of  third  persons  unnecessarily,  and  a  loss  happens, 
the  trustees  must  make  it  up.^     So,  if  the  trustee  pays  the 

son  V.  AVilliamson,  6  Paige,  300;  Dillard  v.  Tomlinson,  1  Munf.  183; 
Carter  v.  Cutting,  5  Munf.  224;  Minuse  v.  Cox,  5  Johns.  Ch.  441;  Cogs- 
well V.  Cogswell,  2  Edw.  Ch.  231. 

1  Lund  I'.  Lund,  41  N.  H.  3.i9;  Stearns  v.  Brown,  1  Pick.  530;  Wyraan 
V.  Hubbard,  13  Mass.  232;  Griswold  v  Chandler,  5  N.  H.  499;  Mathes  v. 
Bennett,  21  N.  H.  199;  Wendell  v.  French,  19  N.  H.  205;  Chambers  v. 
Kerns,  6  Jones,  Eq.  280 

2  Lewin  on  Trusts,  268. 

8  Graves's  App.,  50  Pa.  St.  189. 

*  Cogbill  V.  Boyd,  77  Ya.  450. 

5  Rowland  v.  Witherden,  3  ISlac.  &  G.  568;  Hanbury  v.  Kirkland,  3 
Sim.  265;  Broadhurst  v.  Balguy,  1  N.  &  C.  Ch.  16;  Ghost  v.  Waller,  9 
Beav.  497;  13  Beav.  336. 

®  Challen  v.  Shippam,  4  Hare,  555;  Byrne  r.  Norcott,  13  Beav.  336. 

■^  Barney  i'.  Saunders,  16  How.  543;  Anon.  Lofft,  492;  Fletcher  v. 
Walker,  3  Madd.  73;  Moyle  v.  Moyle,  2  R.  &  M.  701;  INIacdonnell  v. 
Harding,  7  Sim.  178;  Massey  v.  Banner,  4  Madd.  419;  1  J.  &  W.  241; 

588 


CHAP.  XV.]  INVESTMENT.  [§  463. 

money  into  a  bank  in  his  own  name,  and  not  in  the  name  of 
the  trust,  he  will  be  responsible  for  the  money  in  case  of  the 
failure  of  the  bank.^  But  as  between  the  trustee,  his  repre- 
sentatives, and  the  cestui  que  trust,  the  cestui  que  trust  may 
follow  the  money  into  the  hands  of  the  banker.  If  it  is  a 
simple  account,  not  complicated  by  mixture  with  deposits  of 
the  trustee's  own  moneys  and  withdrawals,  it  is  a  simple  debt 
which  the  cestui  que  trust  may  claim  to  be  held  and  applied  to 
the  trust ;  but  the  deposit  of  the  trustee's  own  money,  and  the 
withdrawal  of  part  by  checks,  will  not  defeat  the  right  of  the 
cestui  que  trust.  The  rule  to  be  applied  in  such  case  is  stated 
in  Pennell  v.  Deffell  as  follows :  the  checks  are  to  be  applied 
to  the  earliest  items  of  deposit,  whether  of  the  trust  fund  or 
of  the  trustee's  own  money,  and  such  earliest  items  will  be 
reduced  pro  tanto.  If  anything  of  the  trust  fund  remains  in 
the  hands  of  the  banker  under  this  rule,  it  will  be  applied 
to  the  purposes  of  the  trust.^  This  is  a  rule  for  the  protection 
of  the  cestui  que  trust  in  case  of  the  failure  or  bankruptcy  of 
the  trustee.  But  it  does  not  affect  the  general  rule  before 
stated,  that  where  a  trustee  deposits  the  trust  money  in  his 
own  name,  or  mixes  the  money  with  his  own,  he  must  pay 
interest  for  it,  and  be  responsible  for  the  principal,  in  case  of 
the  failure  of  the  banker  or  of  any  other  loss.^ 

Lowry  v.  Fulton,  9  Sim.  115;  Mathews  v.  Brice,  6  Beav.  239;  Munch  v. 
Cockerell,  9  Sim.  115;  Johnson  v.  Newton,  11  Hare,  160. 

1  Ibid.;  Wren  v.  Kirton,  11  Ves.  377;  Pennell  v.  Deffell,  4  De  G.,  M. 
&  G.  392;  Ex  parte  Hilliard,  1  Ves.  Jr.  89;  Rocke  v.  Hart,  11  Ves.  61; 
Freeman  v.  Fairlee,  3  Mer.  39;  Jenkins  v.  Walter,  8  G.  &  J.  218;  Luken's 
App.,  7  Watts  &  S.  48;  Stanley's  App.,  8  Pa.  St.  131;  Rover's  App.,  11 
Pa.  St.  36. 

2  Pennell  v.  Deffell,  4  De  G.,  M.  &  G.  392 ;  Frith  v.  Cortland,  2  Hem. 
&  M.  417;  34  L.  J.  Ch.  301  ;  Kip  v.  Bank  of  N.  Y.,  10  Johns.  65 ;  Ken- 
nedy ».  Strong,  Id.  289;  School,  &c.  v.  Kirwin,  25  111.  73;  McAllister  v. 
Commonwealth,  4  Casey,  536;  .30  Pa.  St.  536;  Morrison  v.  Kinstra,  55 
Miss.  71. 

3  Mumford  v.  Murray,  6  Johns.  Ch.  1 ;  Kellett  v.  Rathbun,  4  Paige,  102; 
Jacot  V.  Emmett,  11  Paige,  142;  De  Peyster  v.  Clarkson,  2  Wend.  77; 
Garniss  v.  Gardner,  1  Edw.  Ch.  128 ;  Spear  v.  Tinkham,  2  Barb.  Ch.  211 ; 
Merrick's  Est  ,  2  Ash.  485;  Dyott's  Est.,  2  Watts  &  S.  565;  Beverleys  v. 
Miller,  0  IMunf .  99 ;  Deffenderffer  v.  Winder,  3  G.  &  J.  341 ;  Peyton  v. 

589 


§  464.]  INVESTMENT.  [CHAP.  XV. 

§  464.  Trustees  cannot  use  trust  moneys  in  their  business, 
nor  embark  it  in  any  trade  or  speculation ;  ^  nor  can  they  dis- 
guise the  employment  of  the  money  in  their  business,  under 
the  pretence  of  a  loan  to  one  of  themselves,^  nor  to  a  partner- 
ship of  which  they  are  members ;  ^  nor  can  the  money  be 
loaned  on  security  to  be  reloaned  back  to  the  trustee,  or  by 
the  trustee  at  a  profit.*  If  a  trustee  makes  such  use  of  the 
money,  he  will  be  responsible  for  all  loss,  and  he  may  be  com- 
pelled to  pay  the  highest  rate  of  interest ;  or  the  cestui  que 
trust  may  follow  "the  money,  and  insist  upon  all  the  profits 
made  by  such  use  ;  and  if  the  trustee  is  a  trader  or  business 
man,  he  will  be  presumed  to  use  and  employ  the  money  in  his 
business  if  he  deposits  it  in  bank  in  his  own  name ;  for  such 
business  men  must  generally  keep  some  money  in  bank  for  the 
purposes  of  their  credit,  and  such  trust  money  answers  the 
purpose  as  if  it  was  their  own.^  If  the  trust  fund  is  employed 
in  business,  the  whole  increase  will  belong  to  the  fund  ;  but  if 
the  trustee  is  also  one  of  the  beneficiaries,  he  will  be  entitled 

Smith,  2  Dev.  &  B.  Eq.  325;  Jameson  v.  Shelly,  2  Humph.  198;  Kerr 
V.  Laird,  27  Miss.  544 ;  In  re  Thorp,  Davies,  290. 

1  Tebbs  V.  Carpenter,  1  Madd.  304;  Lee  v.  Lee,  2  Yern.  548;  Adye  v. 
Feuilleteau,  1  Cox,  24;  Piety  v.  Stace,  4  Ves.  622;  Docker  v.  Somes,  2 
Myl.  &  K.  655;  Palmer  v.  Mitchel,  Id.  672  n. ;  Miller  v.  Beverleys,  4  Hem. 
&  M.  415;  In  re  Thorp,  Davies,  290;  Manning  i'.  ^Manning,  1  Johns.  Ch. 
527;  Brown  v.  Ricketts,  4  Johns.  Ch.  303.  At  one  time,  it  was  held  that 
executors  might  employ  money  in  their  trade,  especially  if  they  were 
solvent,  and  if  the  assets  were  generally,  and  not  specifically,  bequeathed. 
Grovesnor  v.  Cartwright,  2  Ch.  Ca.  212;  Linch  v.  Cappey,  Id.  35;  Brown 
V.  Litton,  1  P.  Wins.  140;  Ratcliffe  v.  Graves.  2  Ch.  Ca.  152;  Bromfield 
V.  Wytherley,  Pr.  Ch.  505;  Adams  v.  Gale,  2  Atk.  106;  Child  v.  Gibson, 
Id.  603;  but  Mr.  Lewin  says,  that  Lord  Noi-th  overruled  above  forty 
cases,  and  a  twenty  years'  practice,  in  Ratcliffe  v.  Graves,  1  Vern.  196; 
Newton  v.  Bennett,  1  Bro.  Ch.  361;  Adye  v.  Feuilleteau,  1  Cox,  25; 
Lewin  on  Trusts,  255,  276. 

2  Townend  v.  Townend,  1  Gif.  201. 
^  Kyle  V.  Bamett,  17  Ala.  306. 

*  Ratcliffe  v.  Graves,  2  Ch.  Ca.  152;  1  Vern.  196. 

5  Treves  v.  Townshend,  1  Bro.  Ch.  284;  Moons  v.  De  Bernales,  1  Russ. 
301;  In  re  Hilliard,  1  Ves.  Jr.  90;  Sutton  v.  Sharp,  1  Russ.  146;  Rocke 
V.  Hart,  11  Ves.  61;  Brown  v.  Southhouse,  3  Bro  Ch.  107;  Lamb's  App., 
58  Pa.  St.  142. 
590 


CHAP.  XV.]  INVESTMENT.  [§  465. 

to  his  share,  and  it  will  go  to  his  representatives  upon  his 
death.^  Where  an  executor  bought  stock  in  his  own  name 
with  the  trust  fund,  and  the  stock  rose  in  price,  it  was  held 
that  he  was  liable  for  the  market-price  of  the  stock  at  the 
time  of  the  decree.  If  the  investment  is  profitable,  the  eestuis 
que  trust  are  entitled  to  the  profits ;  if  disastrous,  they  are 
entitled  to  interest  on  the  money ;  and  if  the  investment  has 
been  made  with  funds  of  the  estate  mingled  with  funds  of  the 
executor  in  various  stocks,  and  the  funds  of  the  estate  cannot 
be  traced  and  identified  in  any  particular  stocks,  the  eestuis 
que  trust  are  entitled  to  select  the  most  profitable  stocks.^ 

§  465.  There  is  said  to  be  a  distinction  between  an  original 
investment  improperly  made  by  trustees,  and  an  investment 
made  by  the  testator  himself,  and  simply  continued  by  a 
trustee;^  but  it  is  a  distinction  that  cannot  be  safely  acted 
upon.  If  a  testator  gives  any  directions  in  his  will  to  continue 
his  investments  already  made,  trustees  must  of  course  follow 
such  directions ;  and  if  they  follow  them  in  good  faith,  they 
will  not  be  liable  for  any  losses,  unless  they  are  negligent  in 
failing  to  change  an  investment,  when  it  ought  to  be  changed 
to  save  it ;  for  it  cannot  be  supposed  that  the  direction  of  a 
testator  to  continue  a  certain  investment  relieves  the  trustees 
from  the  ordinary  duty  of  watching  such  investment,  and  of 
calling  it  in  when  there  is  imminent  danger  of  its  loss  by  a 
change  of  circumstances.  If  no  directions  are  given  in  a  will 
as  to  the  conversion  and  investment  of  the  trust  property, 
trustees  to  be  safe  should  take  care  to  invest  the  property  in 

1  Hook  V.  Dyer,  47  Mo.  214.  2  Noj-ris's  App.,  71  Pa.  St  106. 

8  Powell  V.  Evans,  5  Ves.  841;  Clough  v.  Bond,  3  Myl.  &  Cr.  496; 
Harvard  Coll.  v.  Amory,  9  Pick.  446;  Thompson  v.  Brown,  4  Johns.  Ch. 
6-28;  Knight  v.  Plymouth,  3  Atk.  480;  1  Dick.  120;  Rowth  v.  Howell,  3 
Ves.  565;  Wilkinson  v.  Stafford,  1  Ves.  Jr.  41;  Vez  v.  Emery,  5  Ves.  144; 
Barton's  Est.,  1  Pars.  Eq.  24;  Murray  v.  Feinour,  2  Md.  Ch.  418;  Brown 
V.  Campbell,  Hopkins,  233;  Smith  v.  Smith,  4  Johns.  Ch.  283.  See  11 
Amer.  Law  Reg.  208  (n.  s.),  April,  1874;  Pierce  v.  Bowker,  130  Mass. 
2fi2,  where  a  trustee,  in  good  faith,  continued  an  investment  in  railroad 
stock  originally  made  by  his  testator,  until,  gradually  falling  in  value,  it 
became  worthless. 

591 


§  466.]  INVESTMENT.  [CHAP.  XV. 

the  securities  pointed  out  by  tlie  law.  It  is  true  that  a  testator 
during  his  life  may  deal  with  his  property  according  to  his 
pleasure,  and  investments  made  by  him  are  some  evidence 
that  he  had  confidence  in  that  class  of  investments ;  but,  in 
the  absence  of  directions  in  the  will,  it  is  more  reasonable  to 
suppose  that  a  testator  intended  that  his  trustees  should  act 
according  to  law.  Consequently,  in  States  where  the  invest- 
ments which  trustees  may  make  are  pointed  out  by  law,  the 
fact  that  the  testator  has  invested  his  property  in  certain 
stocks,  or  loaned  it  on  personal  security,  will  not  authorize 
trustees  to  continue  such  investments  beyond  a  reasonable 
time  for  conversion  and  investment  in  regular  securities.^ 
But  in  States  where  there  are  no  fixed  funds  or  securities 
in  which  trustees  shall  invest,  the  fact  that  a  testator  has 
invested  his  property  in  particular  stocks,  shares  of  corpo- 
rations, mortgages,  or  other  securities,  thus  indicating  his 
confidence  in  such  investments,  will  go  far  to  justify  the 
trustees  in  continuing  them.^  So  trustees,  in  the  usual  course 
of  dealing,  may  take  notes  on  short  time  for  small  sums  of 
rent  due  their  estate,  that  having  been  the  usual  course  of 
dealing  with  the  tenants  by  the  testator.^  Taking  all  the 
cases  together,  it  would  appear  to  be  a  settled  principle  that 
trustees  are  not  justified,  in  the  absence  of  express  or  implied 
directions  in  the  will,  in  continuing  an  investment  perma- 
nently, made  by  the  testator,  which  they  would  not  be  justified 
themselves  in  making.  The  principle  probably  has  this  quali- 
fication, that  if  a  trustee  continue  such  investment  in  good 
faith,  and  a  loss  happens,  he  would  be  held  to  replace  the 
original  sum  only,  without  interest.* 

§  466.  Except  upon  emergency,  to  protect  the  fund  from 
depreciation,  or  to  convert  wasting  securities  to  those  of  a 

1  Hemphill's  App.,  18  Pa.  St.  303;  Fray's  App.,  34  Pa.  St.  100,  over- 
rules the  case  of  Barton's  Est.,  1  Pars.  Eq.  2i;  Kimball  v.  Reading,  11 
Foster,  352. 

2  Harvard  Coll.  v.  Amory,  9  Pick.  446. 
8  Smith  V.  Smith,  4  Johns.  Ch.  283. 

*  Lowson  V.  Copeland,  2  Bro.  Ch.  157;  Tebbs  r  Carpenter,  1  Madd. 
298. 

592 


CHAP.  XV.]  INVESTMENT.  [§  466. 

permanent  character,  or  investments  in  securities  that  are  not 
authorized  by  law  into  such  as  are  allowed,  trustees  may  not 
sell  or  vary  specific  securities  given  in  trust,  nor  securities 
left  by  a  testator  in  which  he  has  himself  invested  the  funds. ^ 
Nor  can  they  change  the  character  of  the  investments  from 
realty  to  personalty,  or  vice  versa,  without  special  authority .^ 
And  if,  without  authority,  trustees  change  investments  prop- 
erly made  for  others  improper  or  unauthorized  by  law,  they 
may  be  required  to  replace  the  securities  sold,  and  also  to  in- 
vest any  profits  which  may  have  accrued  in  the  same  securi- 
ties ;  ^  or  the  cestui  que  trust  may  elect  to  take  the  money 
with  interest  upon  it.*  And  even  if  trustees  have  express 
power  to  vary  the  securities,  they  will  not  be  allowed  to  do  so 
capriciously,  or  without  some  apparent  object ;  ^  and  they 
ought  not  to  sell  out  an  investment  without  having  in  view  an 

1  Angell  V.  Dawson,  2  Y.  &  C.  316;  Flyer  v.  Flyer,  3  Beav.  550;  Ne- 
ville V.  Fortescue,  16  Sim.  333;  Boys  v.  Boys,  28  Beav.  436;  Murray  v. 
Feinour,  2  Md.  Ch.  418 ;  Ward  v.  Ketchen,  30  N.  J.  Eq.  31 ;  Crackelt  v. 
Bethune,  1  Jac.  &  W.  566;  Witter  v.  Witter,  3  P.  Wms.  100  ;  Hammond 
V.  Hammond,  2  Bland,  306.  But  where  the  trustee  has  performed,  with- 
out authority,  an  act  which  at  the  time  it  was  done  was  obviously  for  the 
benefit  of  all  concerned,  and  which  upon  proper  application  would  have 
been  ordered,  his  act  will  be  ratified,  and  held  of  the  same  validity  as  if 
previously  ordered.  Gray  v.  Lynch,  8  Gill,  405.  Where  trustees  under  a 
will  exceeded  their  power  by  buying  real  estate  with  trust  funds,  and 
continued  to  buy  and  sell,  at  first  with  a  profit,  but  ultimately  with  a  loss 
of  a  large  part  of  the  fund,  no  lack  of  good  faith  being  found,  they  were 
held  liable  for  the  amount  of  the  trust  fund  before  the  first  purchase  of 
real  estate  only,  with  interest  from  the  time  the  beneficiaries  should 
have  received  the  income.     Baker  v.  Disbrow,  3  Redf.  (N.  Y.)  348. 

2  Post,  §  602,  et  seq. ;    Quick  v.  Fisher,  9  N.  J.  Eq.  802. 

8  Powlett  V.  Herbert,  1  Ves.  Jr.  297 ;  Evans  v.  Inglehart,  6  Gill  &  J. 
192.  In  such  cases  of  unauthorized  varying  the  securities  the  trustee 
takes  upon  himself  the  burden  of  proving  entire  bonajides,  and  tliat  there 
was  reasonable  ground  to  believe  that  the  fund  would  be  benefited;  and 
if  this  can  be  shown  the  courts  will  sustain  his  action.  Washington  v. 
Emery,  4  Jones  (N.  C),  32;  Cornwise  v.  Bourgum,  2  Ga.  Dec.  15. 

4  Forrest  v.  Elwes,  4  Ves.  497  ;  Fowler  v.  Reynall,  2  De  G.  &  Sm.  749  ; 
3  Mac.  &  G.  500. 

6  Brice  v.  Stokes,  11  Ves.  324;  De  Manneville  v.  Crompton,  1  V.  &  B. 
359 ;  Fowler  v.  Reynall,  3  Mac.  &  G.  5U0. 

VOL.  I. -38  693 


§  467.]  INVESTMENT.  [CHAP.  XV. 

immediate  reinvestment '.  if  they  do  so,  they  may  be  held  to 
pay  the  loss  that  may  occur.^  If  an  investment  in  a  particular 
fund  or  stock  is  directed  by  a  testator,  it  cannot  be  varied  ex- 
cept by  the  consent  of  all  the  parties  interested ;  and  if  there 
are  parties  not  sui  juris,  or  not  in  being,  the  court  itself  will 
not  order  a  change.^  Where  an  investment  was  not  to  be 
varied  without  the  consent  of  the  testator's  wife,  and  she 
waived  the  provisions  of  the  will,  her  consent  was  still  held 
necessary .3  In  those  States  where  there  are  no  stocks,  funds, 
or  securities,  prescribed  by  law,  or  by  the  order  of  court,  in 
which  trustees  must  invest  in  order  to  be  safe,  and  invest- 
ments are  once  made  by  trustees  in  safe  and  proper  securities, 
or  where  investments  are  left  by  the  testator  in  such  securi- 
ties, the  courts  will  be  very  adverse  to  a  change,  and  will  not 
allow  one,  except  for  some  very  controlling  motive.  The 
reason  is,  that  where  there  is  no  rule  governing  investments 
by  trustees,  except  that  they  shall  act  in  good  faith  and  upon 
a  sound  discretion,  courts  are  very  averse  to  change  proper 
investments  once  made,  and  select  others  by  so  very  indefinite 
a  rule.^ 

§.467.  If  trustees  make  an  improper  investment  with  the 
knowledge,  assent,  and  acquiescence,  or  at  the  request  of  the 
cestui  que  trust,  they  cannot  be  held  to  make  good  the  loss,  if 
one  happens  ;  ^  but  the  cestuis  que  trust,  to  be  affected  by  such 
consent  or  acquiescence,  must  be  sui  juris,  and  capable  of 

1  Hanbury  v.  Kirkland,  3  Sim.  265;  Broadhurst  v.  Balguy,  1  N.  C.  C. 
16;  Watts  v.  Girdlestone,  6  Beav.  190. 

2  Wood  V.  Wood,  5  Paige,  596  ;  Trans.  University  v.  Clay,  2  B.  Mon. 
386;  Contee  v.  Dawson,  2  Bland,  264;  Deaderick  v.  Cantrell,  10  Yerg. 
263;  Burrill  v.  Sheil,  2  Barb.  457;  Personeau  v.  Personeau,  1  Des.  521; 
Lamb's  App.,  58  Pa.  St.  142. 

8  Plympton  v.  Plympton,  6  Allen,  178. 

*  Murray  v.  Feinour,  2  Md.  Ch.  418. 

5  Booth  V.  Booth,  1  Beav.  125;  Langford  r.  Gascoyne,  11  Ves.  333; 
Nail  V.  Punter,  5  Sim.  555;  Farrar  v.  Barraclough,  2  Sm.  &  G.  231; 
Broadhurst  v.  Balguy,  1  Y.  &  C.  Ch.  16;  Raby  v.  Ridehalgh,  7  De  G.,  M. 
&  G.  104;  Walker  v.  Symonds,  3  Swanst.  64;  INIunch  v.  Cockerell,  5  Myl. 
&  Cr.  178;  Poole  v.  Munday,  103  Mass.  174;  Brice  u.  Stokes,  11  Ves. 
319. 

594 


CHAP.  XV.]  INVESTMENT.  [§  467. 

acting  for  themselves  ;^  if,  therefore,  they  are  married  women, 
or  minor  children,  or  other  persons  incapacitated,  or  under 
disability,  they  cannot  be  bound  by  any  alleged  acquiescence, 
nor  by  their  urgent  requests,^  although  a  married  woman  may 
acquiesce  in  the  investment  of  trust  property,  given  to  her 
sole  and  separate  use,  in  such  manner  that  she  cannot  after- 
wards complain  of  the  investment  as  improper.^  But  in  order 
that  the  cestuis  que  trust  may  be  bound  by  their  acquiescence 
in  an  improper  investment,  there  must  be,  on  their  part,  full 
knowledge  of  all  the  facts  and  circumstances ;  *  and  the  trustee 
must  be  free  from  all  suspicion  of  misrepresentation  or  con- 
cealment.^ The  remainder-man  cannot  acquiesce  in  an  invest- 
ment, until  his  interest  falls  into  possession,  so  as  to  be  bound.^ 
If  the  improper  investment  has  been  made,  at  the  request  of 
the  tenant  for  life,  and  such  tenant  has  received  an  increased 
income  by  reason  of  the  improper  investment,  such  increased 
income  can  be  recovered  back  from  the  tenant  for  life.^     But 

1  Buckeredge  v.  Glasse,  1  Cr.  &  Phil.  135. 

2  Walker  v.  Symonds,  3  Swanst.  69  ;  Hopkins  v.  Myall,  2  R.  &  M.  86  ; 
Ryder  v.  Bickerton,  3  Swanst.  SO  n. ;  March  v.  Russell,  3  Myl.  &  Cr.  31 ; 
Nail  V.  Punter,  5  Sim.  556 ;  Kellaway  v.  Johnson,  5  Beav.  319  ;  Bateman 
V.  Davis,  3  Madd.  98;  Cocker  v.  Quayle,  1  R.  &  M.  535;  Murray  v. 
Feinour,  2  Md.  Ch.  422;  Barton's  Est.,  1  Pars.  Eq.  47  ;  Kent  v.  Plumb,  57 
Ga.  207. 

3  Mant  V.  Leith,  15  Beav.  524;  Brewer  v.  Swirles,  2  Sm.  &  G.  219; 
Sherman  v.  Parish,  53  N.  Y.  483.  But  she  may  maintain  a  suit  to  cor- 
rect the  irregularity,  although  she  cannot  claim  anything  as  for  a  breach 
of  the  trust.     Ibid. 

4  Munch  V.  Cockerel],  5  Myl.  &  Cr.  178;  Montfort  v.  Cadogan,  17  Ves. 
489.  And  they  must  be  apprised  of  the  effect  and  of  their  legal  rights. 
Adair  v.  Brimmer,  74  N.  Y.  539. 

6  Burrows  v.  Walls,  5  l)e  G.,  M.  &  G.  233;  Underwood  v.  Stevens,  1 
Mer.  712;  Walker  v.  Symonds,  3  Swanst.  1. 

6  Bennett  v.  Colley,  5  Sim.  181 ;  2  Myl.  &  K.  225;  Brown  v.  Cross,  14 
Beav.  105. 

■'  Dimes  v.  Scott,  4  Russ.  195;  Mehrtens  v.  Andrews,  3  Beav.  72; 
Howe  V.  Dartmouth,  7  Ves.  150;  Mills  v.  Mills,  7  Sim.  101;  Pickering  v. 
Pickering,  4  Myl.  &  Cr.  289;  Holland  v.  Hughes,  16  Ves.  114;  Hood  v. 
Clapham,  19  Beav.  90;  M'Gachen  v.  Dew,  15  Beav.  84;  Raby  v.  Ride- 
halgh,  7  De  G.,  M.  &  G.  104;  Band  v.  Tardell,  Id.  628;  Stewart  v.  San- 
dorson,  L.  R.  10  En.  26. 

595 


§468.]  INTEREST.  [chap.  XV. 

if  the  tenant  for  life  protested  against  the  illegal  investment, 
and  desired  the  trustees  to  make  a  proper  investment,  the  in- 
creased income  from  the  illegal  investment  cannot  be  recov- 
ered back.i  jj^  oil  cases  the  assent  to  an  illegal  investment 
must  be  so  formal  that  the  trustees  are  justified  in  acting 
upon  it.  If  it  is  a  mere  expression  that  a  certain  invest- 
ment would  be  safe,  without  any  intention  that  the  trustees 
should  act  upon  it,  the  cestui  que  trust  will  not  be  bound.^ 
So  an  assent  to  a  particular  investment  cannot  justify  a  sub- 
sequent mismanagement  of  the  investment.^  And  acquies- 
cence by  the  cestui  que  trust  will  not  be  presumed  from  mere 
lapse  of  time,  if  he  has  done  nothing  to  acknowledge  it,  or 
has  received  no  benefit.^  Any  party  whose  rights  are  endan- 
gered by  an  improper  or  unauthorized  investment  may  apply 
to  the  court  for  redress ;  ^  but  if  the  investment  was  made 
by  mistake,  or  has  been  corrected,  the  trustees  will  not  be 
removed,  or  they  will  not  be  deprived  of  the  funds.^ 

§  468.  It  is  difficult  to  lay  down  any  general  rule  that  is 
equitable  and  applicable  to  all  cases,  as  to  the  interest  that 
trustees  shall  pay  upon  trust  funds  in  their  hands.  In  Eng- 
land, if  trustees  suffer  money  to  remain  in  their  own  hands,  or 
in  the  hands  of  third  persons,  or  in  bank  for  an  unreasonable 
time,  in  addition  to  their  liability  for  its  loss  during  such 
delay,  they  will  be  charged  with  interest  at  the  rate  of  four 
per  cent ;  but  if  the  trustees  are  grossly  negligent  or  corrupt, 
or  improperly  call  in  the  money  from  a  proper  investment, 
and  suffer  it  to  lie  idle,  or  if  they  use  it  in  trade  or  specula- 
tion, or  invest  it  in  improper  places,  the  court  will  charge 
them  with  interest  at  the  rate  of  five  per  cent ;  and,  in  cer- 
tain special  cases  of  misconduct,  the  court  will  order  annual 

1  Bate  V.  Hooper,  5  De  G.,  M.  &  G.  358;  and  see  Turquand  v.  Mar- 
shall, L.  R.  6  Eq.  112;  Hood  v.  Clapham,  19  Beav.  90. 

2  Nyce's  App.,  5  Watts  &  S.  254. 

3  Lockhart  v.  Reilly,  39  Eng.  L.  &  Eq.  135. 

4  Phillipson  v.  Gatty,  7  Hare,  516. 

5  Bromley  v.  Kelly,' 39  L.  J.  Ch.  274. 

6  Ibid. 

596 


CHAP.  XV.]  INTEKEST.  [§  468. 

or  semiannual  rests,  for  the  purpose  of  charging  them  with 
compound  interest.  In  the  United  States  there  is  no  law  by 
which  different  rates  of  interest  can  be  applied  to  different 
degrees  of  negligence  or  misconduct ;  and  the  only  question 
here  is,  whether  simple  or  compound  interest  shall  be  im- 
posed. The  general  rules,  so  far  as  they  can  be  drawn  from  all 
the  cases,  are  as  follows  :  (1)  If  a  trustee  retains  balances  in 
his  hands  which  he  ought  to  have  invested,  or  delays  for  an 
unreasonable  time  to  invest,  or  if  he  mingles  the  money  with 
his  own,  or  uses  it  in  his  private  business,^  or  deposits  it  in  bank 
in  his  own  name,  or  in  the  name  of  the  firm  of  which  he  was  a 
member,  or  neglects  to  settle  his  account  for  a  long  time,  or 
to  distribute  or  pay  over  the  money  when  he  ought  to  do  so,^ 
he  will  be  liable  to  pay  simple  interest  at  the  rate  established 
by  law  as  the  legal  rate  in  the  absence  of  special  agreements.^ 

^  Cool  V.  Jackman,  13  Brad.  (HI.)  560;  Lehmann  v.  Rothbarth,  111 
111.  185;  Society  v.  Pelham,  58  N.  H.  566;  the  trustee  must  pay  iuterest 
from  the  time  of  diverting  the  fund. 

2  Judd  V.  Dike,  30  Minn.  385;  Pickering  v.  De  Rochemont,  60  N.  H. 
179;  Lyons  v.  Chamberlin,  25  Hun,  49. 

3  Burdick  v.  Garrick,  L.  R.  5  Ch.  211 ;  Blogg  v.  Johnson,  L.  R.  2  Ch. 
225;  Berwick  v.  Murray,  7  De  G.,  M.  &  G.  843;  Treves  v.  Townshend,  1 
Bro.  Ch.  384;  Forbes  v.  Ross,  2  Bro.  Ch.  430;  Piety  v.  Stace,  4  Ves.  620; 
Ashburnham  v.  Thompson,  13  Ves.  402;  Bates  v.  Scales,  12  Ves.  402; 
Pocock  V.  Reddington,  5  Ves.  794;  Sutton  v.  Sharp,  1  Russ.  146;  Crackelt 
V.  Bethune,  1  J.  &  W.  122;  Attorney-General  v.  Solly,  2  Sim.  515; 
Heathcote  v.  Hulme,  IJ.  &  W.  122 ;  Brown  v.  Sansome,  1  McC.  &  Y.  327 ; 
Westover  v.  Chapman,  1  Coll.  177;  Robinson  v.  Robinson,  1  De  G.,  M.  & 
G.  247 ;  Jones  v.  Foxall,  15  Beav.  392 ;  Saltmarsh  v.  Barrett,  21  Beav. 
349;  Knott  v.  Cottee,  16  Beav.  77;  Rocke  v.  Hart,  11  Vea.  58;  Lincoln  v. 
Allen,  4  Bro.  P.  C.  553;  Younge  v.  Combe,  4  Ves.  101;  Dawson  v.  Mas- 
sey,  1  Ball  &  B.  231;  Hicks  v.  Hicks,  3  Atk.  274;  Perkins  v.  Boynton,  1 
Bro.  Ch.  375;  King  v.  Talbott,  40  N.  Y.  86;  Nelson  v.  Hagerstown  Bank, 
27  Md.  53;  Cook  v.  Addison,  L.  R.  5  Ch.  466;  Duffy  v.  Duncan,  35  N.  Y. 
187;  Young  u.  Brush,  38  Barb.  294;  Owen  v.  Peebles,  42  Ala.  338;  Wis- 
tar's  App.,  54  Pa.  St.  60;  Newton  v.  Bennett,  1  Bro.  Ch.  359  ;  Littlehales 
V.  Gascoigne,  3  Bro.  Ch.  73;  Franklin  v.  Firth,  Id.  433;  Longmore  v. 
Broom,  7  Ves.  124;  Trimleston  v.  Hammil,  1  Ball  &  B:  385  ;  Tebbs  v. 
Carpenter,  1  Madd.  290;  Mousley  v.  Carr,  4  Beav.  49;  Hoskins  v.  Nich- 
ols, 1  N.  C.  C.  478;  Beverleys  v.  Miller,  6  Munf.  99;  Diffenderffer  v. 
Winder,  3  G.  &  J.  341;  Muraford  v.  Murray,  6  Johns.  Ch.  1;  Jacot  lu 
Emmett,  11  Paige,  142;  Kellett  i;.  Rathbun,  4  Paige,  102;  De  Peyster 

597 


§  468.]  INTEREST.  [chap.  XV. 

This  rule  is  subject  to  the  qualification  that  trustees  cannot 
make  any  advantage  to  themselves  out  of  the  trust  fund  ;  and 
if  they  make  more  than  legal  interest,  they  shall  pay  more, 
as,  if  they  make  usurious  loans,  they  shall  be  charged  with 
all  their  gains  from  the  use  of  the  money .^  If  the  trustee 
cannot  show  what  amount  of  interest  he  has  received,  he  shall 
be  charged  with  legal  interest  from  the  time  when  the  regular 
investment  ought  to  have  been  made.^  There  may  be  an 
exception  to  the  rule,  that  a  deposit  of  the  trust  money  in 
bank  in  the  name  of  the  trustee,  or  a  mixing  of  the  trust 
fund  with  his  own,  will  impose  a  liability  of  legal  interest. 
There  must  be  some  element  of  a  breach  of  trust  in  the  trans- 
action, or  a  breach  of  duty.^  If  therefore  the  sums  are  small, 
and  the  trustee  receives  no  credit  or  profit  from  the  act,  or 
if  the  act  was  accidental,  or  beneficial  to  the  cestui  que  trust, 
legal  interest  will  not  be  imposed  upon  the  trustee  ;  *  or  if  the 

V.  Clarkson,  2  Weud.  77;  Gai'uiss  v.  Gardner,  1  Edw.  Ch.  128;  Spear  v. 
Tinkham,  2  Barb.  Ch.  211;  Manning  v.  Manning,  1  Johns.  Ch.  527; 
Brown  v.  Rickett,  4  Johns.  Ch.  303;  Williamson  v.  Williamson,  6  Paige, 
298;  Dunscomb  v.  Dunscomb,  1  Johns.  Ch.  508;  Minuse  v.  Cox,  5  Johns. 
Ch.  448;  Cogswell  v.  Cogswell,  2  Edw.  Ch.  231;  Gray  v.  Thompson,  1 
Johns.  Ch.  82;  Armstrong  v.  Miller,  6  Ohio,  118;  Astor's  Est.,  5  What. 
228 ;  Merrick's  Est.,  2  Ash.  285 ;  Worrall's  App.,  23  Pa.  St.  44  ;  Graves's 
App.,  50  Pa-.  St.  189;  Hess's  Est.,  69  Pa.  St.  4.54;  Peyton  v.  Smith,  2 
Dev.  &  B.  Eq.  325;  Jameson  v.  Shelly,  2  Humph.  198;  Dyott's  Est.,  2 
Watts  &  S.  655;  In  re  Thorp,  Davies,  290;  Carr  v.  Laird,  27  Miss.  544; 
Lomax  v.  Pendleton,  3  Call,  538 ;  Handy  v.  Snodgrass,  9  Leigh,  484 ; 
D;ilard  v.  Tomlinson,  1  Munf.  183;  Carter  v.  Cutting,  5  Munf.  223; 
Wood  V.  Garnett,  6  Leigh,  271;  Miller  v.  Beverleys,  4  Hem.  &  M.  415; 
Chase  v.  Lockerraan,  11  G.  &  J  185;  Ringgold  v.  Ringgold,  1  H.  &  G. 
11;  Arthur  v.  Marster,  1  Harp.  Eq.  47;  Rowland  v.  Best,  2  McCord,  Ch. 
317;  Lyles  v.  Hattan,  6  G.  &  J.  122;  Griswold  v.  Chandler,  5  N.  H.  497; 
Lund  V.  Lund,  41  N.  H.  355;  Turney  v.  Williams,  7  Yerg.  172;  Williams 
V.  Powell,  16  Jur.  393;  Dornford  v.  Dornford,  12  Ves.  127;  Wright  u. 
Wright,  2  McCord,  Ch.  185;  Knowlton  v.  Bradly,  17  N.  H.  458;  McKim 
V.  Hibbard,  142  Mass.  422. 

1  Barney  v.  Saunders,  16  How.  543;    Oswald's  App.,  3  Grant,  300; 
Martin  v.  Rayborn,  42  Ala.  468. 

2  Bentley  t'.  Shreve,  2  ISId.  Ch.  219 ;  Rapalje  v.  Hall,  1  Sandf.  Ch.  339. 
8  ]\IcKnight  V.  Walsh,  23  X.  J.  Eq.  136 ;  24  N.  J.  Eq.  492. 

"  Rapalje  v.  Hall,  1  Sandf.  Ch.  399;  Graves's  App.,  50  Pa.  St.  189; 
Bond  V.  Abbott,  42  Ala.  499. 
598 


CHAP,  XV.]  INTEREST.  [§  468. 

trustee  was  a  member  of  a  firm  of  bankers,  and  he  deposited 
with  the  firm  in  his  name  as  trustee,  he  will  not  be  charged 
with  interest,  although  the  firm  made  a  profit  from  the  de- 
posit.i  The  proper  mode  of  talking  the  account  of  trustees  is 
to  treat  all  the  income  of  the  trust  received  during  the  cur- 
rent year  as  unproductive,  and  to  charge  against  the  income 
of  the  current  year  all  the  disbursements,  including  the  com- 
pensation or  commissions  of  the  trustees  for  the  same  year, 
and  to  strike  a  balance,  upon  which,  as  a  general  rule,  in- 
terest is  to  be  allowed,^  but  in  such  a  way  as  not  to  compound 
it.^  If,  however,  these  balances  are  too  small  to  invest,  or  for 
any  reason  the  trustees  might  equitably  keep  them  on  hand, 
interest  will  not  be  allowed  upon  them  until  the  balances  so 
accumulate  as  to  be  properly  invested,  or  until  the  trustees 
ought  to  invest  them.*  Of  course,  as  soon  as  a  trustee  prop- 
erly pays  the  fund  into  court,  his  liability  for  interest  ceases.^ 
But  so  long  as  any  litigation  is  pending  over  the  fund,  and 
the  money  is  not  brought  into  court,  the  trustee  is  bound  to 
keep  it  invested,  and  he  is  liable  for  legal  interest.^  But  a 
guardian  is  not  liable  to  interest  while  the  settlement  of  his 
account  is  pending." 

1  Hess's  Est.,  69  Pa.  St.  454. 

2  Boynton  v.  Dyer,  18  Pick.  1;  Pettus  v.  Clawson,  4  Rich.  Eq.  92, 
Jones  V.  ^Nlorrall,  2  Sim.  (n.  s.)  241 ;  Claikson  v.  I)e  Peyster,  2  Wend.  78 ; 
Vanderheyden  v.  Vanderheyden,  2  Paige,  288 ;  Luken's  App.,  47  Pa.  St. 
356 ;  Reynolds  v.  Waker,  29  Miss.  250 ;  Roach  v.  Jelks,  40  Miss.  754 ; 
Crump  V.  Gerack,  Id.  765. 

3  Rowland  v.  Best,  2  McCord,  Ch.  317;  Jordon  v.  Hunt,  2  Hill,  Eq. 
145;  Walker  v.  Bynum,  4  Des.  555;  Powell  v.  Powell,  10  Ala.  900;  Shep- 
hard  v.  Stark,  .3  Munf.  29;  Burwell  v.  Anderson,  3  Leigh,  348;  Garrett 
V.  Carr,  3  Leigh,  407;  Campbell  v.  Williams,  3  Mon.  122;  Jones  v.  Wai'd, 
10  Yerg.  160.     See  Eliott  v.  Sparrell,  114  Mass.  404. 

*  Rapalje  v.  Hall,  1  Sandf.  Ch.  399;  Graves's  App.,  .50  Pa.  St.  189; 
Woods  V.  Garnett,  6  Leigh,  271 ;  Luken's  App..,  47  Pa.  St.  356.  Trustee 
is  generally  chargeable  with  interest  to  be  computed  from  the  first  day  of 
January  following  his  receipt  of  the  funds.  Livingston  v.  Wells,  8  S.  C. 
317. 

6  January  v.  Poyntz,  2  B.  Mon.  404;  Yundt's  App.,  13  Pa.  St.  575; 
Lane's  App.,  24  Pa.  St.  487;  Younge  v.  Brush,  38  Barb.  294;  Brandon 
V.  Hoggatt,  32  Miss.  335.  «  Ibid. 

'  Yader's  App.,  45  Pa.  St.  394.     But  a  trustee  who  retained  funds  in 

599 


§  469.]  INTEREST.  [chap.  X 

§  469.  (2)  If  a  trustee  is  directed  and  bound  to  invest  in 
a  particular  stock  or  fund  within  a  certain  time,  or  within  a 
reasonable  time,  and  he  neglects  to  make  the  investment  as 
directed,  the  cestui  que  trust  has  his  election  to  take  the 
money  and  legal  interest  thereon,  or  so  much  stock  as  the 
money  would  have  purchased  at  the  time  when  the  invest- 
ment ought  to  have  been  made,  and  the  dividends  thereon.^ 
It  has  been  held  in  some  cases,  that  if  trustees  were  directed 
to  invest  in  stocks,  or  in  real  estate,  and  they  neglected  to  do 
either,  the  cestui  que  trust  might  have  the  amount  of  stocks 
that  could  have  been  purchased,  and  the  dividends  thereon.^ 
On  the  other  hand,  it  has  been  held,  and  is  now  estab- 
lished in  such  case,  that,  as  the  trustees  might  have  invested 
in  real  securities,  and  such  real  securities  might  have  been 
of  less  value  than  the  original  fund,  the  cestui  que  trust  can 
have  only  the  money  and  legal  interest  thereon,  and  cannot 
claim  the  amount  of  stocks  that  might  have  been  purchased.-^ 
If  trustees  are  directed  to  invest  a  certain  fund  separately,  they 
will  be  liable  for  losses  occurring  by  reason  of  neglecting  this 
provision.*  In  Wisconsin,  it  has  been  held  that  if  a  trustee  is 
directed  to  invest  in  United  States  bonds  or  in  real  estate 
security,  the  interest  which  he  might  have  obtained  upon 
proper  real  estate  security  is  the  measure  of  his  liability  for 
failure  to  invest  the  fund.^ 

his  hands,  making  a  claim  to  them  as  his  compensation,  which  he  failed 
to  establish,  was  charged  with  interest  from  the  time  he  ought  to  have 
paid  them.     Jenkins  v.  Doolittle,  69  111.  -115. 

1  Shepherd  ik  Mauls,  4  Hare,  504;  Robinson  v.  Robinson,  1  De  G., 
M.  &  G.  256;  Byrchall  v.  Bradford,  6  Madd.  235;  Vyse  v.  Foster,  8  Ch. 
334;  Ihmsen's  App.,  43  Pa.  St.  471;  Blauvelt  v.  Ackerman,  5  C.  E. 
Green,  141;  Darling  v.  Hammer,  Id.  220;  McElheuuy's  App.,  46  Pa.  St. 
347. 

'  Hockley  v.  Bantock,  1  Russ.  141;  Watts  i'.  Girdlestone,  G  Beav.  188; 
Ames  V.  Parkinson,  7  Beav.  379;  Ouseley  v.  Anstruther,  10  Beav. 
456. 

3  Marsh  o.  Hunter,  6  Madd.  295;  Shepherd  v.  Mauls,  4  Hare,  500; 
Robinson  v.  Robinson,  1  De  G.,  M.  &  G.,  256;  Phillipson  v.  Gatty,  7 
Hare,  516;  Rees  v.  Williams,  1  De  G.  &  Sm.  314. 

*  Wilmerding  v.  McKesson.  103  N.'  Y.  329. 

'  Andrew  v.  Schmitt,  64  Wis.  664. 

600 


CHAP.  XV.]  COMPOUND   INTEREST.  [§  471. 

§  470.  (3)  If  the  trust  fund  was  properly  invested,  ac- 
cording to  the  direction  of  the  trust  instrument,  or  according 
to  law,  and  the  trustee  improperly  converts  the  fund  into 
money,  and  neglects  to  invest  it,  or  invests  it  improperly,  or 
uses  it  in  trade,  business,  or  speculation,  the  cestui  que  trust 
may,  at  his  election,  take  the  dividends  or  interest  which  the 
fund  would  have  produced  if  the  investment  had  been  suf- 
fered to  remain  where  it  was  properly  made ;  or  he  may  take 
legal  interest  on  the  fund ;  or  he  may  take  all  the  profits 
that  have  been  made  upon  the  fund.^  If  the  cestui  que  trust 
elects  to  take  the  profits,  he  must  take  them  during  the 
whole  period,  subject  to  all  the  losses  of  the  business  :  he 
cannot  take  profits  for  one  period  and  interest  for  another.^ 

§  471.  (4)  If  the  trustee  improperly  changes  an  invest- 
ment, and  refuses  to  reinvest  the  money  in  a  legal  manner  ; 
or  if  he  refuses  to  invest  the  fund  in  the  first  instance ;  or  if 
he  uses  the  fund  in  trade,  business,  or  speculation ;  or  makes 
an  improper  or  illegal  investment,  —  the  cestui  que  trust  may 
have  the  income  that  would  have  accrued  from  the  proper 
investment ;  or  he  may  have  simple  interest  at  the  legal 
rate  ;^  or  he  may  take  all  the  profits  of  the  trade  or  business, 
or  other  investment  or  employment  of  the  money,  and  if  the 
trustee  refuse  to  account  for  the  profits  arising  from  his  use 
of  the  money,  or  if  he  has  so  mingled  the  money  and  the 
profits  with  his  own  money  and  profits  that  he  cannot  sepa- 
rate and  account  for  the  profits  that  belong  to  the  cestui  que 
trust,  the  cestui  que  trust  may  have  legal  interest  computed 
with  annual  rests,  in  order  to  compound  it.*     And  sometimes 

1  Jones  V.  Foxall,  15  Beav.  392;  Robinett's  App.,  36  Pa.  St.  174;  Salt- 
marsh  V.  Barrett,  31  Beav.  349;  Kyle  v.  Barnett,  17  Ala.  306;  Barney  v. 
Saunders,  16  How.  513;  Brown  v.  De  Tastet,  Jac.  281;  Cook  v.  Collin- 
gridge,  Id.  607;  Crawshay  v.  Collins,  15  Ves.  218;  2  Russ.  325;  Feather- 
stonhaugh  v.  Fenwick,  17  Ves.  298;  Docker  v.  Somes,  2  Myl.  &  K.  655; 
Wedderburn  v.  Wedderburn,  2  Keen,  722;  4  Myl.  &  Cr,  41 ;  Norris's  App., 
71  Pa.  St.  125.  2  Heathcote  v.  Hulme,  IJ.  &  W.  122. 

'  Cogbill  V.  Boyd,  79  Va.  1,  and  cases  in  next  note;  Seguin's  App., 
103  Pa.  St.  139. 

4  Jones  V.  Foxall,  15  Beav.  392;  Raphael  v.  Boehra,  11  Ves.  92;  13 

601 


§  471.]  COMPOUND    INTEREST.  [CHAP.  XV. 

even  biennial  rests  will  be  allowed  in  computing  the  com- 
pound interest  where  the  trustee  has  used  the  fund  in  his 
own  business^  There  has  been  considerable  conflict  of  opin- 
ion and  authority  upon  the  matter  of  compounding  interest 
against  a  trustee.  Lord  Cranworth  said,  that  a  trustee  might 
as  well  be  charged  with  more  principal  than  he  had  received 
as  to  be  charged  with  more  interest.^  In  another  case,  it 
was  said  in  England  that  a  trustee  would  be  charged  with 
more  than  four  per  cent  interest :  ^  (1)  when  he  ought  to 
have  received  more ;  (2)  when  he  did  receive  more ;  (3)  when 
he  is  presumed  to  receive  more  ;  and  (4)  when  he  is  estopped 
to  say  he  did  not  receive  more.*  Compound  interest  was 
allowed  in  one  case  where  the  trustee  held  the  fund  after 
the  minor  cestui  came  of  age  without  making  any  arrange- 
ment with  the  child  or  explaining  to  him  his  rights.^  The 
burden  is  on  the  trustee  to  show  that  he  made  no  profits,  or 
received  no  benefit  from  the  money ;  ^  and  if  he  refuses  to  ac- 
count or  to  show  the  amount  of  profits  received,  the  court 
will  give  compound  interest,  in  order  that  it  may  be  certain 

Ves.  407;  1  Madd.  167;  Saltmarsh  v.  Barrett,  31  Beav.  349;  Walker  v. 
Woodward,  1  Russ.  107;  Heighington  v.  Grant,  5  Myl.  &  Cr.  258;  2  Phill. 
600;  Williams  v.  Powell,  15  Beav.  461 ;  Walrond  r.  Walrond,  29  Beav. 
586;  Stackpole  v.  Stackpole,  4  Dow.  P.  C.  209;  Eliott  v.  Sparrell,  114 
Mass.  404;  State  v.  Howarth,  48  Conn.  207;  Hook  v.  Lowry,  95  N.  Y. 
103. 

1  Page's  Ex'r  v.  Holeman,  82  Ky.  573. 

2  Attorney-General  v.  Alford,  4  De  G.,  M.  &  G.  851. 
8  Penney  v.  Avison,  3  Jur.  (n.  s.)  62. 

4  Attorney- General  v.  Alford,  4  De  G.,  M.  &  G.  851;  Norris's  App., 
71  Pa.  St.  106. 

5  Emmet  v.  Emmet,  17  Ch.  D.  142. 

6  Knott  V.  Cottee,  16  Beav.  77;  16  Jur.  752;  Swindall  v.  Swindall,  8 
Ired.  Eq.  286;  Ringgold  v.  Ringgold,  1  H.  &  G.  11;  DiffenderfEer  v. 
Winder,  3  G.  &  J.  311;  Schieffelin  v.  Stewart,  1  Johns.  Ch.  620;  Bryant 
V.  Craige,  12  Ala.  3.54 ;  Hodge  v.  Hawkins,  1  Dev.  &  B.  Eq.  566;  Hugh 
V.  Smith,  2  Dana,  253;  Karr  v.  Karr,  6  Dana,  3;  Smith  v.  Kennard,  38 
Ala.  695;  McElhenny's  App.,  61  Pa.  St.  188.  Annual  rests  were  allowed 
in  Harland's  Acct.,  5  Rawle,  329;  Livingston  v.  Wells,  8  S.  C.  347;  the 
question  was  left  open,  Dietterich  v.  Heft,  3  Barr,  91;  McCall's  Est.,  1 
Ash.  357;  Pennypacker's  App.,  41  Pa.  St.  44,  and  rests  were  wholly 
rejected  in  Graves's  App.,  50  Pa.  St.  189. 

602 


CHAP.  XV.]  COMPOUND    INTEREST.  [§  471. 

that  the  cestui  que  trust  gets  the  profits  of  the  trade  or  busi- 
ness in  which  the  trustee  has  employed  the  money.^  To 
justify  the  compounding  of  interest,  there  must  be  a  wilful 
breach  of  duty ,2  and  not  simple  neglect ;  there  must  be  some 
special  and  peculiar  circumstances.^  Compound  interest  will 
not  be  given  against  negligent  trustees  where  the  facts  do  not 
indicate  a  withdrawal  of  the  funds  from  their  legitimate  chan- 
nels of  accumulation,  or  a  realization  by  the  trustees  of  profits 
on  the  assets.^  If  the  money  is  simply  used  in  business,  and 
it  appears  tliat  the  profits  were  not  equal  to  the  interest,  an- 
nual rests  will  not  be  made.^  It  appears  now  to  be  the  set- 
tled doctrine,  that  compound  interest  will  not  be  given  as  a 
penalty  for  a  breach  of  trust,  nor  will  it  be  given  for  an 
employment  of  the  money  in  the  course  of  trade,  if  the  profits 
made  in  the  trade  can  be  clearly  ascertained,  and  are  less 
than  legal  interest,  or  less  than  five  per  cent ;  but  if  nothing 
appears  as  to  the  profits,  the  courts  will  presume  that  the 
ordinary  profits  of  trade  are  made,  or  five  per  cent  in  Eng- 
land and  the  legal  interest  in  the  United  States.  And  if  the 
interest  or  profits  of  the  fund  are  retained  in  the  trade,  in- 
stead of  being  paid  out,  it  will  be  presumed  that  the  trustees 

1  Knott  V.  Cottee,  16  Beav.  77  ;  16  Jur.  752 ;  Swindall  v.  Swindall,  8 
Ired.  Eq.  286;  Ringgold  v.  Ringgold,  1  H.  &  G.  11;  Diffenderffer  v. 
Winder,  3  G.  &  J.  311;  Schieffelin  v.  Stewart,  1  Johns.  Ch.  620;  Bryant 
V.  Craige,  12  Ala.  354;  Hodge  v.  Hawkins,  1  Dev.  &  B.  Eq.  566;  Hugh 
V.  Smith,  2  Dana,  253;  Karr  v.  Karr,  6  Dana,  3;  Smith  v.  Kenuard,  38 
Ala.  695;  McElhenny's  App.,  61  Pa.  St.  188.  Annual  rests  were  allowed 
in  Harland's  Acct.,  5  Rawle,  329;  Livingston  v.  Wells,  8  S.  C.  347;  the 
question  was  left  open,  Dietterich  v.  Heft,  3  Barr,  91 ;  McCall's  Est.,  1 
Ash.  357 ;  Pennypacker's  App.,  41  Pa.  St.  44,  and  rests  were  wholly 
rejected  in  Graves's  App.,  50  Pa.  St.  189. 

2  Hughes  V.  People,  111  111.  457;  Wilmerding  v.  McKesson,  103  N.  Y. 
329. 

8  Garniss  v.  Gardner,  1  Edw.  Ch.  128 ;  Ackerman  v.  Emott,  4  Barb. 
626;  Tebbs  c.  Carpenter,  1  IVIadd.  290  ;  Fay  v.  Howe,  1  Pick.  528,  and  n. ; 
Clemens  v.  Caldwell,  7  B.  Mon.  171 ;  Fall  v.  Simmons,  6  Ga.  272;  Kenan 
V.  Hall,  8  Ga.  417;  Cartledge  v.  Cutliff,  21  Ga.  1. 

*  Ames  V.  Scudder,  8.3  Mo.  189. 

^  Utica  Ins.  Co.  v.  Lynch,  11  Paige,  521 ;  Kyle  v.  Barnett,  17  Ala. 
306;  Ringgold  v.  Ringgold,  1  H.  &  G.  11  ;  Myers  v.  Myers,  2  McCord, 
Ch.  214;  Wright  v.  Wright,  Id.  185;  Johnson  v.  Miller,  33  Miss.  553. 

603 


§  472.]  COMPOUND    INTEREST.  [CHAP.  XV. 

made  a  similar  rate  of  interest  or  profit  upon  the  sum  retained 
in  trade,  and  therefore  annual  rests  will  be  made,  and  com- 
pound interest  given ;  not  as  punishment  or  penalty,  but 
because  the  fund  and  the  income  employed  in  trade  are 
presumed  to  produce  that  amount  of  income,  interest,  or 
profit.^  The  trustee  must  seek  out  the  cestui  que  trust  to 
pay  the  income  to  him,  or  he  must  pay  interest  upon  it. 
So,  where  a  trustee  receives  property  and  sells  it,  he  must 
account  for  the  proceeds.  And  if  he  refuses,  he  will  be 
charged  with  the  highest  value  that  can  be  sustained  by  the 
evidence.^  But  a  mere  payment  into  bank  to  the  general 
account  of  the  trustee  is  not  such  an  employment  of  the 
money  as  to  justify  compound  interest.^  A  trustee  is  ac- 
countable for  all  interest  and  profits  actually  received  by 
him  from  the  trust  fund,  and  for  all  which  he  might  have 
obtained  by  due  diligence  and  reasonable  skill.^ 

§  472.  If  a  trustee  is  directed  to  make  a  certain  invest- 
ment, and  to  accumulate  the  income,  and  he  neglects  or 
refuses  so  to  do,  the  cestui  que  trust  is  entitled  to  compound 
interest,  upon  all  the  authorities.  If,  by  the  instrument  of 
trust,  interest  is  to  be  added  to  principal  semiannually,  semi- 
annual rests  will  be  made ;  otherwise  annual  rests  will  be 
made,^  or  an  inquiry  will  be  directed  to  ascertain  what  would 

1  Jones  V.  Foxall,  15  Beav.  388;  Burdick  v.  Garrick,  L.  R.  5  Ch.  233. 
See  the  matter  of  compound  interest  elaborately  discussed  by  Mr.  Justice 
Scarburgh  in  Ker  v.  Snead,  11  Law  Rep.  217,  Boston,  Sept.  1848;  and 
Wright  V.  Wright,  2  McCord,  Eq.  200-204 ;  McKnight  v.  Walsh.  23  N.  J. 
Eq   136;  24  N,  J.  Eq.  498;  Lathrop  r.  Smalley,  23  N.  J.  Eq.  192. 

2  McKnight  v.  Walsh,  23  N.  J.  Eq.  136 ;  Burdick  v.  Garrick,  L.  R.  5 
Ch.  233. 

3  Norton's  Estate,  7  Phila.  484, 
*  Cruce  V.  Cruce,  81  Mo.  676. 

6  Raphael  v.  Boehm,  11  Ves.  92;  13  Ves.  407,  590;  Dornford  v.  Dorn- 
ford,  12  Ves.  127;  Knott  v.  Cottee,  16  Beav.  77;  Pride  v.  Fooks,  2  Beav. 
430 ;  Byrne  v.  Norcott,  13  Beav.  336  ;  Stackpole  v.  Stackpole,  4  Dow.  P.  C 
209 ;  Brown  v.  Southhouse,  3  Bro.  Ch.  107  ;  Karr  v.  Karr,  6  Dana,  3 
Bowles  V.  Drayton,  1  Des.  489  ;  Hodge  v.  Hawkins,  1  Dev.  &  Bat.  564 
Wilson  V.  Peake,  3  Jur.  (n.  s.)  155;  Brown  v.  Sansome,  1  McCle.  &  Yo 
427;  Lesley  v.  Lesley,  1  Dev.  117;  Fitham  v.  Turner,  23  L.  T.  (n.  s.) 
604 


CHAP.  XV.]  COMPOUND    INTEREST.  [§  472. 

have  been  the  amount  of  the  accumulation  if  the  directions 
had  been  followed,  in  order  to  charge  the  trustee  with  the 
^mount.^  And  where  a  trustee  was  ordered  by  the  court  to 
invest  a  sum  in  controversy,  and  he  neglected  to  do  so,  he 
was  ordered  to  bring  the  whole  sum  into  court  with  com- 
pound interest.^  Interest  may  be  allowed  against  a  trustee, 
although  the  bill  does  not  pray  for  it.^  If  a  trustee  improp- 
erly withholds  money  as  a  commission,  he  may  be  made  to 
pay  compound  interest  on  it.* 

345;  Court  v.  Robarts,  6  CI.  &  Fin.  G4;  Townsend  v.  Townsend,  1  Gif. 
201. 

1  Brown  v.  Sansome,  1  McCle.  &  Yo.  427. 

2  Latimer  v.  Hansom,  1  Bland,  51 ;  Winder  v.  Diffenderffer,  2  Bland, 
166;  McKnight  v.  Walsh,  23  N.  J.  Eq.  136;  24  N.  J.  Eq.  498;  Lathrop 
V.  Smalley,  23  N.  J.  Eq.  192. 

8  Blogg  V.  Johnson,  L.  R.  2  Ch.  225. 
*  McKnight  v.  Walsh,  23  N.  J.  Eq.  136. 

605 


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